The ICC Policy Paper on Sexual and Gender-Based Crimes: A Crucial Step for International Criminal Law
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THE ICC POLICY PAPER ON SEXUAL AND GENDER-BASED
CRIMES: A CRUCIAL STEP FOR INTERNATIONAL
CRIMINAL LAW
VALERIE OOSTERVELD*
I. BACKGROUND
II. THE POLICY PAPER'S FULSOME UNDERSTANDING OF GENDER
III. THE POLICY PAPER CLARIFIES THE MEANING OF GENDER
IV. THE POLICY PAPER PROVIDES A GENDER-SENSITIVE
FRAMEWORK FOR JUSTICE
CONCLUSION
In 2014, the Office of the Prosecutor of the International Criminal
Court (ICC) launched its Policy Paper on Sexual and Gender-Based
Crimes, the first policy issued by the Office.' It was the culmination
of more than two years of effort by the ICC's second Prosecutor,
Fatou Bensouda, to strengthen her office's focus, expertise and com-
mitment to the prosecution of sexual and gender-based crimes.2
This Policy Paper represented an important step within interna-
tional criminal law and has the potential to transform how gendered
acts within genocide, mass atrocity, and war are prosecuted. The basis
for the policy was the explicit inclusion in the Rome Statute of the
ICC of an expansive list of sexual and gender-based violations, includ-
ing rape, sexual slavery, enforced prostitution, forced pregnancy,
enforced sterilization, other forms of sexual violence of comparable
gravity and gender-based persecution.3 This was the first time in in-
ternational criminal law that sexual and gender-based acts had
been this extensively enumerated as crimes.4
* Associate Dean (Research) and Associate Professor, University of Western Ontario
Faculty of Law (Canada). The author wishes to thank the Social Sciences and Human-
ities Research Council of Canada-funded Canadian Partnership for International Justice
for its financial support of this research. Any errors are the author's own.
1. INT'L CRIMINAL COURT, OFFICE OF THE PROSECUTOR, POLICY PAPER ON SEXUAL
AND GENDER-BASED CRIMES 5 (2014), https://www.ice-cpi.int/icedoes/otp/OTP-Policy-
Paper-on-Sexual-and-Gender-Based-Crimes--June-2014.pdf [http://perma.cclL264-QZ8Z]
[hereinafter ICC OTP POLICY PAPER].
2. Fatou Bensouda, Prosecutor of the International Criminal Court, The Prosecution
of Sexual and Gender-Based Crimes by International Courts (July 16, 2016), at 3, https://
www.ice-cpi.int/itemsDocuments/160716_Prosint_courtsandthefight-againstSGBC
.pdf [http://perma.ce/4KN4-X8JT] [hereinafter Bensouda 2016 Speech].
3. Rome Statute of the International Criminal Court, Arts. 7(1)(g), (h), 8(2)(b)(xxii),
8(2)(e)(vi), July 17, 1998, 2187 U.N.T.S. 3 [hereinafter Rome Statute].
4. ICC OTP POLICY PAPER, supra note 1, ¶ 1. The Policy Paper sets out the ground-
breaking nature of this list:
The Statute is the first instrument in international law to include an ex-
pansive list of sexual and gender-based crimes as war crimes relating to
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The ICC Policy Paper on Sexual and Gender-Based Crimes: A Crucial Step for International Criminal Law
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