Law Development by the International Criminal Court as a Way to Enhance the Protection of Minorities—the Case for Intersectional Consideration of Mass Atrocities

Abstract

Mass atrocities almost invariably involve the targeting of racial, ethnic, religious and/or political groups. Other groups, such as homosexuals, have also been vulnerable to targeted destruction. Both experience and international case law demonstrate that atrocity crimes have mostly been inflicted on minorities within minorities. With individuals being targeted on several personal grounds or due to overlapping identities (for example, women and girls belonging to ethnic or religious minorities) there is a strong case for both scholarship and international criminal judiciary to develop an expertise on intersectional discrimination in the context of international crimes that implicate discriminatory intent of a perpetrator. Yet, the International Criminal Court (ICC or Court) has tended to consider atrocities motivated by discrimination on isolated discriminatory grounds and independently from each other. As a prescriptive contribution, the present article challenges this trend by arguing that in more complex criminal cases the protected characteristics need to be considered together with, and not separately from, one another, in order to capture the multi-faceted experiences of mass abuses. Underlying the treatment of the subject matter are thus two basic questions: first, given a full respect for the principle of legality (nullum crimen sine lege), what are the possible avenues for international criminal adjudication to recognize intersectionality so as to overcome conceptual flaws and limitations of single-issue analysis of discrimination in cases involving core international crimes against minorities? For example, can Article 21(3) of the Rome Statute on the interpretation and application of substantive international criminal law in light of international human rights standards serve as a viable tool for the Court to evolve its jurisprudence on this particular issue? Second, how and to what extent should the Court take intersectionality into consideration in the formulation of charges; identification and interpretation of applicable law; determination of criminal sentence; ordering adequate remedies (reparations) for victims; and in considering such aspects as the gravity assessment, or the contextualisation of crimes? Answering these questions, the article shows that by applying, interpreting and, when need be, developing international criminal law in a way that utilizes intersectionality the ICC can make in these areas important jurisprudential contributions with far-reaching socio-legal implications.