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THE CONVENTION’S PROTECTED GROUPS: A PLACE FOR GENDER?

Katy Grady*

I. Introduction

Article II of the Convention on the Prevention and Punishment of the of Genocide 1948 defi nes genocide as: [a]ny 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 bodily or mental harm to members of the group; (c) Deliberately infl icting 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. Th is defi nition has been subsumed within customary , with the obligations imposed on states binding ‘even without any con- ventional obligation’1 as jus cogens. Th e decision by the International Criminal Tribunal for Rwanda (ICTR) in the case of Akayesu,2 to which Judge Navanethem Pillay made a signifi cant contribution, broke new ground with respect to the legal defi nition of genocide. Feminist law- yers in particular welcomed the inclusion of within the actus reus of genocide, and the recognition of the concept of ‘rape as genocide’.3 Moreover, the elaboration of the Genocide Convention’s protected groups to cover the Tutsi population, by the use of the ‘stable and permanent’ criteria, whilst controversial, nonetheless provided ample food for thought for international lawyers.

* My thanks to Matthew Fisher and Patrick Capps for their invaluable assistance with this essay. Th e views expressed in this essay are those of the author and do not represent the views of the Association UK. 1 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (1951) ICJ Reports (1951) 15, at 23. 2 Akayesu Case No ICTR-96-4-T (1998). 3 MacKinnon ‘Rape, Genocide and Women’s ’ (1994) 17 Harvard Women’s Law Journal 5, at 9. 166 part three − kate grady

In honour of Judge Pillay, this essay seeks to further explore the rela- tionship between the notion of gender within the crime of genocide, and the basis for the groups protected by the legal defi nition of the off ence. Th e logical extension of the position adopted in Akayesu in recognising gender-based as genocide is the inclusion of gender-groups within the defi nition of the off ence. Th is essay develops a conceptual analysis of the notion of a genocide targeting a gender group, i.e. a genocide targeting men or women with the intent to destroy in whole or in part their gender group. It contends that on a theoretical level, and in keeping with the spirit of the Genocide Convention, it is appropriate that gender should be included as a protected group. Th ere are two principal diffi culties with the literature on genocide with regards to gender. First, many lawyers examining the issue of a gender-based genocide express, in passing, that the Genocide Con- vention’s protected groups do not include gender as a criterion in addi- tion to national, racial, ethnical and religious groups. On that basis, they oft en argue, gender could or should be included. For example, Lippman states that reforms have been suggested, which would ‘protect political groups and possibly women, homosexuals, and economic and professional classes’4 whilst Whitaker, in his report to the UN Economic and Social Council in 1985, ‘recommended that the defi nition should be extended to include a sexual group such as women, men or homo- sexuals’.5 Yet, authors who cite the potential expansion of the Convention to cover gender groups oft en have little to say on how or why this should be, or what such a gender-based genocide would look like. Very few authors explain in detail why the protected groups should include gender, or examine what justifi cations there are for expanding the Convention’s remit in this specifi c direction, other than by providing generic justifi cations for expanding the protected groups in many new directions. Secondly, those that do provide reasons why gender should be included within the protected groups tend to do so primarily with ref- erence to acts committed against women, or men, in the context of a wider genocide against a particular national, ethnical, racial or religious group. Oft en, such scholars appear to confuse the issue of male or

4 Lippman, ‘Th e Convention on the Prevention and Punishment of the Crime of Genocide: Fift y Years Later’, (1998) 15(2) Arizona Journal of International and Comparative Law 415, at 464. 5 Whitaker Revised and updated report on the question of the prevention and pun- ishment of the crime of genocide UN Doc E/CN.4/Sub.2/1985/6, 2 July 1985, at 16.