Gendercide and Genocide: A Case for Legal Considerations of Gender

First coined by Raphael Lemkin, a Polish Jewish lawyer, in 1944, “genocide” was derived by the Greek root ‘genos’ (meaning family, tribe, or race) and the Latin suffix ‘cide’ (meaning killing). The word got its formal legal definition in the Convention on Prevention and Punishment of the Crime of Genocide (commonly referred to as the Genocide Convention), ratified by the United Nations General Assembly in 1948. Arguably, the most contentious part of this definition, in both legal scholarship and the practice of international law, has been the delineation of protected groups. The current definition protects national, ethnic, racial and religious groups and excludes categories like political groups, gender and sexual identity groups, disabled groups, etc. 

This restrictive definition of genocide has led to what scholars call a ‘blind spot’: hypothetical and often real situations where perpetrators can evade culpability by arguing that the mass violence waged against the victim group was motivated by their gender, sexuality or political ideology, not race, religion or ethnicity, and thereby escape prosecution. There needs to be an expansion of the definition of genocide under the Convention to extend protection to gender groups. In other words, ‘gendercide’, referred to by American scholar Mary Anne Warren as “the deliberate extermination of persons of a particular sex (or gender)”, should be considered genocide in international criminal law. 

What is the sex doing in the genocide?

Catherine MacKinnon, a well renowned radical feminist and legal scholar, famously asked “what is the sex doing in the genocide?”, and that is indeed the first question we are posed with. Is there a gendered element to violence in genocides? The obvious answer, looking at the long history of sexual violence in war times and conflict areas from the pillage of the ancient city of Troy to the modern day extermination and mass rape of the Yezidis in Iraq, is yes. There has been a sustained effort by feminists to uncover the gendered aspect of mass-violence, and genocide in particular. The movement started with the recognition of sexual violence as worthy of attention and its characterisation as being similar to other forms of genocidal violence in the 1950s and 1960s. From here, the feminist approach evolved into seeing sexual violence as a ‘coordinate’ in genocide. Scholars like Joan Ringelheim have done pioneering work in unearthing an obscured narrative of sexual violence faced by Jews, especially women, in Nazi Germany, described by Robin May Schott as the “missing piece of the puzzle in the analysis of the Holocaust”. The third approach sees sexual violence as integral to genocidal violence. Scholars like MacKinnon have vociferously defended the uniqueness of sexual violence as a tool distinctly suited to serving a genocidal function because of what it does to a group. Mary Anne Warren, by coining the term ‘gendercide’, aimed to highlight “the fact that gender roles have often had lethal consequences, and that these are in important respects analogous to the lethal consequences of racial, religious, and class prejudice”. Therefore, increasing importance has been given to gender in genocide by feminist scholars.

Gendercide under the current definition of genocide

Given the prevalence of gendercide, how much importance does the current definition of genocide give to gender? Genocide, according to Article II of the Convention, is defined as,

“any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: 

(a) Killing members of the group; 

(b) Causing serious or mental harm to members of the group; 

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; 

(d) Imposing measures intended to prevent births within the group; 

(e) Forcibly transferring children of the group to another Group” (UN Treaty Series 1951).

Fundamentally, there are two components to the crime of genocide: actus rea and mens rea. The actus rea, referring to the objective element or the modus operandi of the crime, is delineated in the aforementioned five actions of a genocidaire. Mens rea is the subjective element, referring to the criminal intent. An intention to destroy, in whole or in part, of any of the listed protected groups (even though it may not result in actual violence) can be considered genocide. This intent has been qualified with the term dolus specialis in jurisprudence, meaning a specific intent arising from discriminatory notions towards the protected group. In other words, violence is brought to individuals solely because of their membership to the targeted group. 

Under the current definition, sexual violence has been granted recognition, without explicit mention, as a tactic of genocide under clause (b), positing serious or mental harm to a group, and clause (d), classifying measures intended to prevent births. Rapes, castration, female genital mutilation, forced separation of men and women (and even boys and girls under clause (e) for that matter) are all widespread instances of sexual violence that have been well-documented in recognised genocides in Rwanda, Srebrenica, Darfur, etc. Thus, sexual violence is an adequate actus rea for the legal determination of a genocide. However, the ultimate declaration is contingent on mens rea, and more specifically, the presence of dolus specialis. The biggest hurdle, consequently, is which group is being discriminated against and this is where the current definition of genocide is lacking. 

Filip Hassellind provides us with a helpful hypothetical to understand the inadequacy of the definition in the context of gender:

“Imagine a community is suffering from overpopulation. To gain control over its population size, it decides that all families may only have one child. Since the imagined community adheres to a draconian interpretation of primogeniture, the child must be male. In consequence, all female-born children under this period must be discarded.”

Such a mechanism would not count as genocide under the present definition because the dolus specialis is tied to gender, and gender groups are not a protected category. As such, there are multiple examples of sex-selective mass violence such as witch-hunts in Early Modern Europe, Sati (i.e widow burning), dowry deaths and maternal mortality that would not be deemed genocides. Indeed, the presence of such specifically gender-driven crimes heighten the need for legal action. 

However, even in cases where gender is not the only dolus specialis, there is a case for recognising gender groups. The four categories mentioned in the Genocide Convention are by no means airtight and their conflation removes the need for a single unique intent. To put it simply, Uighur Muslims in the Xianxiang region of China who are facing extermination at present,  are both an ethnic and religious category. It is not possible to separate both identities and one cannot easily determine whether the victim group is facing violence because of their ethnicity or their religion. 

Using this principle of the overlap between the different kinds of groups, it can be argued that gender groups enjoy sufficient protection currently because of the presence of other overlapping categories and therefore the definition does not need expansion. However, in that regard, the exclusion of gender groups appears arbitrary. Instances in the past like the Nanking massacre, the massacre of Bangladesh men in 1971, the École Polytechnique massacre and the genocide in Srebrenica have shown us that the gender of victim groups, though not the only reason, is a conspicuous impetus for the genocidaire’s violence. The arbitrariness of the legal definition of genocide appears endemic, and we shall return to it later in the paper. 

Benefits of the expansion of the definition of genocide

Having established the deficiencies of the contemporary characterisation of genocide, there is merit in exploring the benefits of expanding the definition to include gendercide. Given the enormity of the crime, it seems insensitive to discuss legal semantics rather than concrete purposeful steps to prevent and punish such travesties. However, the importance of the legal nomenclature of genocide cannot be overstated and this influence often becomes outsized due to the anarchic nature of the international sphere. The first step to prevention and punishment is recognition. This is because once recognised, by the norm of jus cogens (referring to a fundamental principle, transcended by treaty obligations, that is unviolable by any state), states need to act to prevent or punish genocide. Consequently, the inclusion of gendercide under genocide contributes to both the deterrence of the crime and punishment upon it, providing some semblance of justice to the victims. Hassellind describes the specific wording of the Genocide Convention and similar multi-party treaties as a “rights implementing institute”. The formalisation of the components of the crime and protected groups becomes a “vessel for rights”, alive to the requirements of inclusion and exclusion. By including a group under its ambit, the statute confers the right to protection against genocide, and consequently the right to life and right against discrimination. 

Addressing Criticisms

There are three common criticisms addressed towards the demand for inclusion of gender groups. Firstly, that such a redefinition would open a Pandora’s box and set in motion a process wherein every identity group seeks protection. Such an argument is constructed on weak principled grounds as it does not address why gendercide specifically should not be included. The argument, however, holds merit against calls for dissolution of any mention of specific protected groups or for general mentions of an ‘arbitrary group’, as implemented in the domestic legislations of Burkina Faso, Congo and France. This is because there are concerns about the dilution of the meaning of the genocide and the gravity is holds. Our analysis of the prevalence of gender dynamics to genocide, however, show us that its inclusion only contributes towards a better understanding of the enormity of this crime. 

Secondly, critics argue that gender groups enjoy enough protection under current international criminal regulation since gendercide is also recognised as a ‘crime against humanity’. However, this argument ignores the crucial distinction between the two crimes. Genocides, unlike crimes against humanity, have the requirement of dolus specialis, giving it a uniquely discriminatory character. This means that while a genocide oftentimes also meets the requirements of crimes against humanity, the same cannot be said for the opposite relation. Furthermore, while a crime against humanity involves a widespread, systemic attack against a particular group, a genocide is driven by the intent to ‘destroy’ the said group, in whole or in part. Put simply, the latter violates group rights, whereas the former connotesan individualistic conception of persecution. For all these reasons, Hassellind notes, “making reference to crimes against humanity as a surrogate for a ‘gendercide’ risks inadequately reflecting the content of the criminal categories.” 

Thirdly, there are problems of effecting this redefined treaty obligation as there is a risk of member states reneging their membership to the Convention. Consequently, more efforts should be directed towards preventing the crime of gendercide outside the domain of genocide and the Convention. A similar conversation has taken place on the topic of including ‘political groups’ in the definition of genocide. While this category enjoyed protection through most of the drafting process of the Convention, in the face of Soviet opposition, political groups were excluded from the ultimate definition. The worry was that Stalinist mass repressions, conducted along political lines, might incur accusations of genocide. Therefore, we see that law is intrinsically tied to politics. The debate on the expansion of the legal sphere can be characterised as the dichotomy between formalism and instrumentalism. Martti Koskenniemi explains it best: 

“From the instrumental perspective, international law exists to realise objectives of some dominant part of the [international society]; from the formalist perspective, it provides a platform to evaluate behaviour, including the behaviour of those in dominant positions. The instrumental perspective highlights the role of law as social engineering, formalism views it as an interpretative scheme.” 

This paper sides with the formalist perspective of international law. An analysis of genocide reveals the integral role of gendercide and that the inclusion of sexual violence makes the characterisation of genocide more comprehensive. Given this, and given the benefits legal recognition brings, the author believes that a greater degree of accountability should rest on nation states, especially the great powers. Furthermore, granting legal recognition also strengthens the international legal institutions to bring justice, in conjunction with international civil society organisations. As for the method of implementing this expansion, scholars have suggested that the legal obligations surrounding genocide can be enforced on contractual and non-contractual parties by depending on the norm of jus cogens that forms a premptory principle of international relations. 

Conclusion

This article builds a case for the inclusion of gendercide in the legal definition of genocide under the Genocide Convention. Approaching this as a policy decision, the paper analyses the theoretical arguments for and against this amendment. Upon establishing the presence of gender in genocide, its existing definition appears flawed and restrictive. It is also not in alignment with the contemporary academic consensus on the gravity of gendercide, in the context of war. 

This enquiry also brings to notice the gendered politics of the construction of the restrictive definition of genocide. It seeks to exclude women’s rights to protection, primarily. This is because the majority of the sexual violence and other means of gendercide are directed towards women, often stemming from systemic inequalities imposed by patriarchal structures. This definitional restriction imposes epistemic and legal barriers to an issue that cuts into the lives and existence of women. The current construction of protected groups favouring men is morally problematic and highlights the law’s jumble with politics.

Rishabh Chawda is a third-year undergraduate student at Ashoka University studying Political Science and International Relations.

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