Femicidal Futures: Expanding the Rome Statute By Georgia Delgado Fitzgerald

Femicidal Futures:

Expanding the Rome Statute

By Georgia Delgado-Fitzgerald*

ABSTRACT

This article highlights the state practice of Mexico as a case study, where femicide has a tenacious grip on the state. Mexico’s state practice in response to femicide is analysed to understand the current circumstances and frictions of femicide dualistically on both the state and the international level, addressing the contentions of femicide and its intersections with patriarchal values, organised crime violence and domestic violence. These intersections complicate the criminalisation of femicide when attempting to hold states accountable, given the precarious and harrowing reality of organised crime and state relationships, with power dynamics oppressing both organised crime actors and state actors, who simultaneously contribute and create necropolitical violence. The aim of highlighting Mexico’s high rates of femicide is to reflect on state practice in responding to female subjugation and to demonstrate the urgency of the inclusion of femicide as a novel core crime in the Rome Statute. This paper will assess femicide as a form of genocide, finding it problematic due to the activation of the female identity to the exclusion of trans and queer victims. It will then consider it as a crime against humanity and find it is equally problematic to apply to the endemic nature of femicide as femicide needs to meet the widespread and systematic requirements. Ultimately, the inclusion of femicide into the Rome Statute as a novel core crime will be argued for, and the implementation of this will further criminalise state actors who show inertia in the implementation of international norms that protect women.

* LL.B. Candidate, International and European Law Program, The Hague University of Applied Sciences.

I. INTRODUCTION

Femicide is universally prevalent at alarming rates.1 This questions the efficiency of legal enforcements currently in place to prevent femicide. In Mexico in particular, femicide has a grim and relentless hold on the state,2 with ten killings per day in 2019.3 Universally, femicide is a pandemic in itself that has been compounded by the negative effects of the current Coronavirus pandemic on family and gender dynamics.4 In this paper, Mexico is used as a case study to understand the current circumstances and frictions of femicide on a state level, addressing the contentions of femicide as a crime by omission. Mexican femicides and the intersection with organised crime violence is highlighted. Moreover, this paper will show how complicated the issue becomes when attempting to hold states accountable, due to the nature of femicide as a global issue involving a multiplicity of actors. This article aims to demonstrate the possibilities of establishing femicide as a crime under the Rome Statute, to prosecute state actors before the ICC and to enforce accountability on states. Femicide as a crime may be considered as an act of genocide, a crime against humanity or be introduced as a novel core crime. This article argues that the International Criminal Court (ICC) provides the ability to hold state actors accountable for contributing to, or for a lack of action on mass femicide within their state, thus ensuring effective means to prohibit and prevent femicide. Additionally, expanding femicide as an international criminal act produces a formal and greater recognition of women’s experiences of violence, and exemplifies the ICC and international criminal law as receptive and alive.

II. FEMICIDE DEFINITION

The term femicide refers to the killing of women and girls. Femicide is the act of homicide of a woman because of her gender.5 United Nations documents define femicide as the gender-related killing of women that can take different forms, such as intimate partner and domestic violence killings, dowry related killings, witchcraft killings, honour killings, killings within an armed conflict, killings of black

1 Adrian Lewis, 'Combatting Femicide in France' (2020) 23 Hum Rts Brief 11. 2 Melissa W. Wright, ‘Necropolitics, Narcopolitics, and Femicide: Gendered Violence on the Mexico-U.S. Border’ (2011) 36/3 Signs 726. 3 Kirk Semple and Paulina Villegas, ‘The Grisly Deaths of a Woman and a Girl Shock Mexico and Test Its President’ The New York Times (19 February 2020) <https://www.nytimes.com/2020/02/19/world/americas/mexico-violence-women.html> accessed 16 April 2021. 4 United Nations Office of the High Commissioner for Human Rights, ‘Urgent action needed to end pandemic of femicide and violence against women, says UN expert’ (25 November 2020) <https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26533&LangID=E> accessed 16 April 2021. 5 Rae Taylor and Jana L Jasinski, 'Femicide and the Feminist Perspective' (2011) 15 Homicide Stud 341.

and indigenous women, killings of queer and trans women, and more.6 The Vienna Declaration on Femicide7 adds genital mutilation femicides, and gang, organized crime, drug dealers, and human trafficking killings. Femicide, beyond this definition, is a “complex, polyhedral and culturally dependent murder”.8

The rate of femicide is rising,9 and efficient legal enforcement to prevent this number from increasing is now overdue. Additionally, the information collected on homicide is often not differentiated on account of sex or gender by states, hence the rate is currently under-represented.10 Including femicide in the Rome Statute offers state obligations as well as international attention and public shame, that current legal instruments, such as The Vienna Declaration on Femicide,11 do not offer. Developments in international criminal law in practice on gender-based violence, such as the Akayesu12 case, which established rape as a genocidal act, demonstrate international criminal law’s ability to expand on gender-based crimes. This indicates the potential for the explicit inclusion of femicide into the realm of international criminal law.

III. CRIMINALISATION

This paper argues for individual criminal responsibility in States that indulge or allow femicide practices, rather than state responsibility or the implementation of human rights frameworks. Advocating for punitive measures can be considered problematic, given the oppressive power structures that criminalisation can construct and enforce.13 Criminalisation prevents and limits the imaginative possibility of transformation, healing and possibly interpersonal justice14 that other avenues may offer. Criminal responsibility provides a distinction between individual and state accountability, implying a personal attribution of the crime of femicide onto perpetrators.15 Highlighting individual criminal responsibility, although incredibly important for state restoration, can limit the ability to assess the

6 UNGA 'Report of the Special Rapporteur on Violence Against Women, its Causes and Consequences, Rashida Manjoo' (23 May 2012) UN Doc A/HRC/20/16. 7 ECOSOC ‘Vienna Declaration on Femicide’ Res 1996/31 (1 February 2013). 8 Magdalena Grzyb, Marceline Naudi and Chaime Marcuello-Servós “Femicide Definitions” in Shalva Weil, Consuelo Corradi and Marceline Naudi (eds) Femicide across Europe: Theory, Research and Prevention (Bristol University Press 2018). 9 Lewis (n 1). 10 Patricia Eastal, 'Femicide: The Politics of Woman Killing' (1994) 27 Aust & NZ J Criminology 210 11 ECOSOC (n 7). 12 Prosecutor v Akayesu (Judgment) ICTR-96-4-T, T Ch I (2 September 1998). 13 Jackie Wang, Carceral Capitalism (Semiotext(e), 2018) 297. 14 ibid. 15 Vincenzo Militello, 'The Personal Nature of Individual Criminal Responsibility and the ICC Statute' (2007) 5 J Int'l Crim Just 941.

wider problems that lead to widespread and mass violence.16 However, the creation of an objective historical record through investigations and evidence demonstrates who was instrumental in the contribution to femicide and instrumentalizes public shame on powerful state actors to stain and discredit individuals that contribute to femicide.17 Individual criminal responsibility additionally highlights that the power of the state is constructed and maintained not only by powerful actors themselves but also by systems of the patriarchy and the people that uphold it.18

IV. MEXICO

This article presents Mexico as a case study, in order to highlight the complicated intersections of femicide with drug and organised crime violence and how these political issues complicate the situation of femicide there. Additionally, the precarious and harrowing reality of organised crime and state relationships complicate the opportunity to hold states liable on an international scale under the Rome Statute.19 The aim of highlighting Mexico’s high rates of femicide and using Mexico to reflect on state practice in responding to femicide is to demonstrate the urgency of characterising femicide under the Rome Statute in certain states outside the context of war. Mexico is used in this article to demonstrate

how femicide on a state level can be neglected, because of other factors, such as organised crime, patriarchal values, a lack of resources20 and other priorities. To avoid accusations of western paternalism, it should be noted that femicide is also rising in Western and European states.21

Additionally, Mexico’s issue with femicide is so alarming that Mexican feminists have coined the concept ‘feminicidio’.22 The concept of ‘feminicidio’ is very close to femicide, although not identical, as it includes state responsibility for protecting women from femicide. This concept was developed in the 1990s by Mexican feminist scholars. It was inspired by femicide and it is used to provide a framework to describe the current, alarming and dramatic rise in extreme violence against women and gender-based killings in Mexico. The difference between femicide and ‘feminicidio’ is the critical element of the failure of the state to legally prosecute or punish the perpetrators of femicide.23‘Feminicidio’ extends upon the traditionally conceptualised idea of femicide, evaluating femicide as a state crime and placing accountability on state actors. This definition of femicide provides

16 Tor Krever, 'International Criminal Law: An Ideology Critique' (2013) 26 LJIL 701 page 24. 17 Nesam McMillan, 'Our Shame: International Responsibility for the Rwandan Genocide' (2008) 28 Austl Feminist LJ 3. 18 Doris E Buss, 'Knowing Women: Translating Patriarchy in International Criminal Law' (2014) 23 Soc & Legal Stud 73. 19 Karen Stout, 'Intimate Femicide: An Ecological Analysis' (1992) 19 J Soc & Soc Welfare 29. 20 Wright (n 2). 21 Lewis (n 1). 22 Grzyb, Naudi and Marcuello-Servós (n 8) 20. 23 ibid.

the potential for international obligations for human right violations,24 and demonstrates the need for state action on femicide in Mexico as envisioned/advocated by Mexican feminist legal scholars. The concept of ‘feminicidio’ emphasizes a push from Mexican feminist legal scholars on creating accountability at a state level for femicidal acts through international criminal law in Mexico.

Mexico as a state party to the Convention on the Elimination of All Forms of Discrimination Against Women,25 violates obligations of the Convention on the Elimination of All Forms of Discrimination Against Women committee.26 There are issues in the enforcement of femicide as an international crime within international criminal law, due to a lack of enforceable treaties upon states and state reluctance.27

It has been argued that the development of women’s rights against violence have alienated women from the protection of femicidal acts in the historical process,28 an example being the Convention on the Elimination of All Forms of Discrimination Against Women.29 Femicide is neglected in this convention, with no specific provision on violence against women or femicide.30 This Convention does however outline that women require freedom of “distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women,”31 therefore Mexico has a duty to enforce these obligations, and address issues of femicide.32

Later recommendations33 fill in existing gaps in the Convention, providing protocols on femicide, demonstrating that international criminal law in practice offers developments in response to global concerns, even if through soft-law and non-legally binding instruments.34 The Istanbul Convention35 explicitly places responsibility on the state to prevent all forms of violence against women, protect those

24 ibid. 25 UNGA Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979, entry into force 3 September 1981) UNTS vol. 1249. 26 UN Committee for the Elimination of All Forms of Discrimination against Women, ‘General Recommendation No 19’ in ‘Note by the Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (29 July 1994) UN Doc HRI/GEN/1/Rev.1. 27 Katherine Mobilia, 'Salvation for the Women of El Salvador: Recognizing a Violation of International Human Rights for the Sake of Ending Femicide' (2020) 43 Fordham Intl LJ 1329. 28 Christine Chinkin, ‘Violence against women: The international legal response’ (2010) 3/2 Gender and Development 25. 29 UNGA (n 25). 30 Chinkin (n 28) 26. 31 UNGA (n 25). 32 Rosa M Celorio, 'The Case of Karen Atala and Daughters: Toward a Better Understanding of Discrimination, Equality, and the Rights of Women' (2012) 15 CUNY L Rev 335. 33 UN Committee for the Elimination of All Forms of Discrimination against Women, ‘General Recommendation No 19’ in ‘Note by the Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (29 July 1994) UN Doc HRI/GEN/1/Rev.1. 34 Chinkin (n 28) 26. 35 Council of Europe 'Convention on Preventing and Combating Violence against Women and Domestic Violence' (11 April 2011) CETS 210.

who experience it and prosecute perpetrators.36 The Vienna Declaration on Femicide additionally offers a definition of femicide37 – an important development.38 These international treaties prohibit femicide, yet rates of femicide are still high and states show a lack of enforcement of these treaties. It should be noted that Mexico has not ratified the Istanbul Convention. There is reluctance from state actors to

implement existing laws that provide women with protection from violence, and the state criminal justice system’s ineffectiveness adds additional barriers to the criminalisation of femicide on a state level.39

V. FEMICIDE AS A CRIME IN THE ROME STATUTE SYSTEM

This article identifies three options for the criminalization of femicide at the ICC. Femicide will be analyzed below as a crime of genocide, crimes against humanity and a novel core crime.40

Firstly, femicide may be construed as a genocidal act against women as a group. Femicide could be considered within the scope of the act of murder under Rome Statute Article 6 (a),41 if the suspect killed women specifically due to their membership in an existing group, as argued by Carson and other feminist advocates.42 Additionally, femicide could be considered as crime against humanity under Article 7 of the Rome Statute,43 provided that femicide fulfils the widespread or systematic requirements. Finally, femicide is analysed as a possible novel core crime in the Rome Statute. This option provides for a more generous understanding of femicide, since genocide and crimes against humanity have a narrow scope when applied to the crime of femicide.

International laws and practices aiming to prevent or prohibit femicide, such as international treaties specifically aimed at femicide criminalisation,44 have weak enforcement mechanisms that are proving non-effective.45 Femicide, and even more broadly, gender persecution, have been historically neglected

36 Shalva Weil, ‘Femicide Across Europe: Theory, research and prevention’ in Shalva Weil, Consuelo Corradi and Marceline Naudi (eds) Femicide Across Europe: Theory, research and prevention (Policy Press 2018) 9. 37 ECOSOC (n 7). 38 Weil (n 35). 39 Veronica Michel, ‘Judicial Reform and Legal Opportunity Structure: The Emergence of Strategic Litigation against Femicide in Mexico’ (2020) 82 Studies in Law, Politics and Society 46, 16. 40 Graciela Atencio, Femicidio: De la categoría político-jurídica a la justicia universal (Los Libros De La Catarata 2021). 41 Rome Statute of ICC (adopted 17 July 1998, entered into force on 1 July 2002) 2187 UNTS 3 article 6 (a). 42 Kimberly E Carson, 'Reconsidering the Theoretical Accuracy and Prosecutorial Effectiveness of International Tribunals' Ad Hoc Approaches to Conceptualizing Crimes of Sexual Violence as War Crimes, Crimes against Humanity, and Acts of Genocide' (2012) 39 Fordham Urb LJ 1249. 43 Rome Statute of (n 40) 7. 44 (Such as) ECOSOC ‘Vienna Declaration on Femicide’ Res 1996/31 (1 February 2013), Council of Europe 'Convention on Preventing and Combating Violence against Women and Domestic Violence' (11 April 2011) CETS 210. 45 Chinkin (n 28).

by international legal instruments46 and the ICC.47 The first case on gender persecution was the Al Hassan48 case before the ICC, as recently as 2015. Although there are some more recent contributions49 to international criminal law to protect women from gender-based violence, femicide as an international legal crime is not found in international instruments that provide criminal responsibility. However, it is currently an emerging crime that has yet to achieve universal acceptance.

The Rome Statute outlines that “the Court shall be limited to the most serious crimes of concern to the international community as a whole.”50 This article will argue that femicide is currently a critical and unprecedented endemic, and that femicide deserves inclusion as a separate crime within the ICC.

This journal article is motivated by a gap in legal theory academia on femicide urgently needing expansion into the Rome Statute51 to offer the potential of adequate individual criminal responsibility for perpetrators. Femicide’s expansion into the Rome Statute is analysed under several different crimes, namely femicide as a genocidal act, a crime against humanity, or a separate core crime. In order to criminalise this phenomenon, femicide as a war crime in the Rome Statute has been set aside. War crimes are an aggravating circumstance for femicide but amending the legal framework of war crimes is not part of this article. Female victims in war can be murdered by both sides as violence can be inflicted on both sides of a conflict. When women are the target of homicide outside of war, perpetrators and victims have a different group verification and this would limit the scope of femicide’s potential to be criminalised. Additionally, it would restrict the ability to prosecute states that by omission, are responsible for femicide outside the scope of war, such as Mexico.

VI. GENOCIDE

Genocide is provided for under Article 6 of the Rome Statute.52 To establish genocide under the Rome Statute, five underlying acts can be committed exclusively, including killing members of the group.53 These acts must be committed with the intent to destroy in whole or in part a racial, ethnic,

46 Thiago Pierobom de Avila, ‘The Criminalisation of Femicide’ in Kate Fitz-Gibbon, Sandra Walklate, Jude McCulloch, JaneMaree Maher (eds), Intimate Partner Violence, Risk and Security: Securing Women’s Lives in a Global World (1st edn, Routledge 2018) 181. 47 Kristina Hatas, ‘The case for gender-based violence as an international crime’ (Hertie School, 13 September 2019) <https://www.hertie-school.org/the-governance-post/2019/09/gender-based-violence-as-an-internationalcrime/> accessed 4 February 2021. 48 The Prosecutor v Al Hassan Ag Aboul Aziz Ag Mohamed Ag Mahmoud (Decision on the Prosecutor’s Application for the Issuance of a Warrant of Arrest for Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud) ICC-01/12-01/18, Pre-Trial Chamber I (22 May 2018). 49 Weil (n 37) 9. 50 Rome Statute of ICC (n 40) art 5(1). 51 ibid. 52 ibid. 3 art 6. 53 ibid.

national, or religious group, as such. “As such” means that the act is committed against that person because they are a member of that group.54 The murder of women must form part of a manifest pattern, as established by Jelisić, 55 satisfying the contextual element of genocide, to ensure that the conduct of femicide is committed against women in a pattern.

Some feminist scholars advocate that gender should be considered the fifth group within genocide,56 adding to the four existing groups of racial, ethnic, national, or religious.57 Genocide protects these four groups only, meaning that acts of femicide on a large scale58 are not regarded as genocidal because women are not one of the four protected groups and cannot be considered a target for genocide. Genocide disproportionally impacts women,59 but the Genocide Convention60 does not discuss gender as a group in genocidal campaigns.61 Additionally, The Rwandan Tribunal found burgomaster Akayesu62 guilty of committing genocidal acts by the actus reus of rape, demonstrating that sexual acts can constitute genocide as causing seriously bodily or mental harm,63 establishing that rape as an act can satisfy Article 6 (b) of the Rome Statute. Additionally, many women are raped before they are murdered in genocidal campaigns64 illustrating the nature of how women experience genocide from a gendered perspective, and that genocidal conflicts intersect with gender-based violence. Several authors argue that sexually destroying the group of women meets the requirement of genocide, when women belong to the existing groups that meet the genocide requirements.65 Therefore, femicide as a genocidal act would need to be the murder of women that belong to one of these four groups, if it were to follow the genocidal rape expansion of Akayesu.66

To ensure that women not belonging to any of the four groups can be protected by genocide under the Rome Statute, women can be considered their own, standalone group. This would require establishing ‘women’ as an additional fifth group.

To add women as their own group would be problematic, considering that women are not murdered to totally or partially destroy the group of women, but because women are victims of femicide due to social values universally placed on women. To prosecute femicide as a genocidal act would require the

54 ibid. 55 Jelisić Case (Judgment) ICTY-95-10 (14 December 1999). 56 Rebecca S. Katz, 'Genocide: The Ultimate Racial Profiling' (2003) 5 J L & Soc Challenges 65. 57 Rome Statute of ICC (n 40) art 6. 58 Catharine A MacKinnon, 'Genocide's Sexuality' (2005) 46 NOMOS: Am Soc'y Pol Legal Phil 317. 59 ibid. 313. 60 UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide (9 December 1948, UNTS 277, vol. 78) (1951) art. II. 61 Katz (n 54). 62 Prosecutor v Akayesu (n 12). 63 ibid para 731. 64 Katz (n 54). 65 ibid. 66 Prosecutor v Akayesu (n 12).

mens rea to destroy in part or in whole women as a group, which is difficult to prove when femicide is a complex act that exposes how “rational masculinity contribute(s) to violence, to the silencing of citizens, and to state-sanctioned impunity.”67 Additionally, the omission of political, economic, social and other groups demonstrates the limitations put in place by having an exhaustive list of protected groups or identities,68 and therefore it is probably inefficient to add to a limited and narrow list of identities that can be protected from genocide.

As the mens rea of femicide is not necessarily to destroy in part or in whole women as a group69 , because the individual act of femicide contributes to a larger patriarchal system that causes violence against women.70 Femicide’s determining factor, to murder women on account of their gender, is the motivation for the crime, but the intention to destroy women in whole or in part is not demonstratable. Therefore, it is not adequate to enforce femicide criminalization as an extension of genocide. Using Article 6 of the Rome Statute to prosecute femicidal acts conceptualizes femicide as a killing of a woman because she exists as a member of an already persecuted group. To counter this, some scholars such as Rebecca S Katz have argued for sex as a group.71 Gender is a more appropriate word when attempting to activate the group identity requirement, when it concerns the “social dynamic of gender”72 as referenced in the Rome Statute. A more holistic approach that protects women also outside of persecuted groups, is adding gender as an identity group to the existing four groups. This would ensure that women were protected as their own group, as women are murdered for the reason of having the identity of a woman. It would also ensure the protection of identities outside of women, and also transgender people. Transgender women are often marginalized from the group identity of cis-gendered women while also being murdered for being trans women, problematizing the activation of the group of gender amongst women.

As genocide requires proof of the victim’s group solidarity and active belonging to the group that is being persecuted, this option may marginalize transgender women from being able to activate their female identity in relation to cis gendered women. Additional barriers to the manifest pattern established by Jelisić73 are placed as femicide can be committed outside of a similar pattern, and therefore I hesitate to argue for this expansion into the Rome Statute.

67 Wright (n 2) 726. 68 William A. Schabas, Groups Protected by the Genocide Convention: Conflicting interpretations from the International Criminal Tribunals for Rwanda (2000) ILSA J Int’l & Comp. L p. 375. 69 Atencio (n 39). 70 ibid. 71 Katz (n 54) 65. 72 Rome Statute of ICC (n 40) (3). 73 Jelisić n 53).

States such as Mexico, where the rates of transgender femicides are exorbitant,74 may be precluded from criminal responsibility under the Rome Statute if genocide is applied to the death of transgender women. The gender identities of transgender women are often dismissed, and the subjugation of transgender women may be precluded from the active group element of both gender or woman, as often violence perpetrated against transgender women is characterized as generalized violence or hate crimes75 rather than femicidal acts.

VII. CRIME AGAINST HUMANITY

Although there are instrumental treaties in the development of criminalizing femicide, cases such as The Cotton-Field Case76 have additionally led to the criminalization of femicide in sixteen Latin American countries.77 Although these developments placed femicide in the international spotlight for a brief period of time,78 some feminist scholars argue that to criminalize femicide appropriately, the Cotton-Field Case should have considered the gendered killings as a crime against humanity, considering that women in Mexico are endemically murdered.79 Scholar Emily Chertoff advocates for crimes against humanity to expand the acts of crimes against humanity to include femicide, as this negates the genocide requirements of belonging to a group and cuts out intersectional group identity issues.80

A crime against humanity as established under Article 7 of the Rome Statute can be summarized as an act committed as “part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”81 consisting of many underlying crimes, including the act of murder.82

Considering this, femicide must be an intentional attack, that is inter alia widespread or systematic, to constitute a crime against humanity. Provided that femicide is endemic and common place in certain

74 Leigh Goodmark, 'Transgender People, Intimate Partner Abuse, and the Legal System' (2013) 48 Harv CR-CL L Rev 51. 75 ibid 54. 76 Inter-American Court of Human Rights González et al. (“Cotton Field”) v. Mexico (2009) 49 ILM 637. (Adjourn: The Inter-American Court of Human Rights decided on the case of three murdered women, whose bodies were found in a cotton field in Ciudad Juárez, Mexico, in the context of widespread violence against women and embraced a gender perspective on women’s death and the prevalence of femicide in Mexico in the judgement, later incorporated into domestic laws to criminalize femicide). 77 Rebecca Cook, 'Lessons from the Cotton Field Case about Gender Justice' (2010) 104 Am Socy Intl L Proc 565. 78 ibid. 79 Thiago Pierobom de Avila, ‘The Criminalisation of Femicide’ in Kate Fitz-Gibbon, Sandra Walklate, Jude McCulloch, JaneMaree Maher (eds), Intimate Partner Violence, Risk and Security: Securing Women’s Lives in a Global World (1st edn, Routledge 2018) 181. 80 Emily Chertoff, 'Prosecuting Gender-Based Persecution: The Islamic State at the ICC' (2017) 126 Yale L J 1052. 81 Rome Statute of ICC (n 40) 7. 82 ibid.

states, such as Iraq with respect to Yazidi women being raped and murdered, for being women, on mass, and Nigeria with respect to women and girls being abducted and murdered by Boko Haram,83 femicide committed in these circumstances would qualify as widespread and systematic attack on civilians. The systematic chapeau element of crimes against humanity refers to the organized nature of the acts of violence and the improbability of isolated acts.84 Provided the insidious and repetitive nature of femicide occurring in both current ISIS attacks against Yazidi women and Boko Haram attacks on Nigerian women, femicide here is considered to be a coordinated attack. In Mexico, given femicide’s relation to gang violence and family violence, and the multiplicity of actors when holding states accountable for acts of omission, femicide could be understood as isolated cases of violence rather than results of unequal power imbalances and widespread violence, as femicide is often misunderstood.85 Although femicide is endemic in Mexico, the contentions of gang violence and family violence could negate the widespread attack on women. This would set dangerous precedent that femicide would need to be part of a coordinated attack from an organization like structure,86 rather than a result of coordinated and interlocked power structures involving organized crime gangs and the patriarchy at large, that enforce state omission.

Additionally, states such as Mexico who have demonstrated a lack of action on preventing femicide and punishing femicide perpetrators could be argued to be held accountable under omission responsibility.87 A concern for applying crimes against humanity in Mexico is that women do not constitute the general population, because women are inscribed with social difference in relation to their gender. Therefore, femicide in Mexico could be excluded from the systematic or widespread attacks on individuals, possibly considered isolated or sporadic violence, characterizing homicides of women deaths as domestic homicides.

However, this would not provide justice to the bigger, global endemic of femicide, given the disruptive nature of femicide to the status quo, appearing chaotic, while being inherently logical to the systems in place that subjugate women.88 Some cultural practices allowed by states, such as Mexico, by omission would not be understood as part of an organizational attack considering the indirect nature of femicide in these states and the difficulty in proving coordinated gang violence. Therefore, crimes against humanity may not efficiently be able to characterize femicide. I therefore again hesitate to argue for this framework, although it does provide a more encompassing identity element than genocide.

83 Chertoff (n 77) 1050. 84 Rudolfo D Saenz, 'Confronting Mexico's Enforced Disappearance Monsters: How the ICC Can Contribute to the Process of Realizing Criminal Justice Reform in Mexico' (2017) 50 Vand J Transnat'l L 45. 85 Chinkin (n 28). 86 Douglas Guilfoyle, International Criminal Law (OUP 2016) 201. 87 ibid. 88 Wright (n 2) 713.

VIII. CORE CRIME

Elevating femicide to a core crime adequately and directly establishes criminal responsibility for femicide and demonstrates the development of international law in practice as responsive to the critical issue of femicide by offering adequate protection. The Rome Statute has inferred options for prosecuting femicide as genocide and crimes against humanity. However, these existing crimes do not state femicide as an explicit, core crime. This additional crime would prove effective for the protection of victims of femicide and would not place the conditions of genocide and crimes against humanity elements place on their crimes, providing direct responsibility on states that have contributed to femicide by acts or state omission. Therefore, establishing femicide as a core crime into the Rome Statute will provide a fifth additional core crime. Considering the Netherlands previously proposed to add the crime of terrorism as the fifth core crime, it is plausible that a state party could request an amendment to the Rome Statute and request femicide to be incorporated as a novel core crime. The Netherlands proposed the inclusion of terrorism for several reasons, one being that the international community stands united against terrorism in all forms.89 Considering that the reason provided was to stress the universal scale, urgency, and the issue of impunity for acts from states and current international laws on crimes of terrorism, it is possible that femicide could follow suit. Establishing femicide as its own core crime would ensure that femicide does not have to fit within the crime of genocide or crimes against humanity requirements, providing a more generous and flexible approach to international law in practice. Provided with the contentions of Mexico and the reasons for state omission on femicide, this would adequately provide direct criminal responsibility for state actors that dismiss and normalize femicide in states such as Mexico.

Presenting femicide as a core crime provides the space to advocate for a redefinition of gender within international criminal law. Considering genocide’s limited identity groups, and the Rome Statute’s declaration that gender “refers to the two sexes, male and female, within the context of society,”90 femicide as a core crime creates space to advocate for gender inclusive language and laws. This is because femicide as a core crime would cover gender inclusive language and remove itself from activating a female identity but would concern itself with protecting women killed for being gendered. Femicide as a core crime would also present the ability to create criminal responsibility outside of the crime against humanity chapeau elements of widespread or systematic, regarding its universal prevalence. Considering the urgency of protecting women from femicide, femicide as a core crime and its potential to combat the limitations of genocide and crimes against humanity in protecting women is crucial.

89 Jennifer Trahan, 'Potential Future Rome Statute Amendments' (2012) 18 New Eng J Int'l & Comp L 331. 90 Rome Statute of ICC art 7(3).

The possibility of the ICC considering femicide as a novel crime is perhaps naïve. The potential of new core crimes being freely debated is not realistic given the limited history of this, however international law in practice has proven herself responsive to world events.91

IX. CONCLUSION

This article has only briefly explored the potential of femicides expansion into The Rome Statute and the future of femicide at the ICC. International law in practice has an expansive and dynamic nature that could swell to provide accountability for femicide, which is essential given the crucial urgency of preventing this endemic crime. Contentions of this complicated crime were raised in this article, voicing contentions on state response to femicide, using Mexico as an example to demonstrate the problematic nature of social norms, organized crime and family dynamics contributing to the crime of femicide, as well as the states responsibility by omission. Feminist scholars evaluate genocide and crimes against humanity protecting women from femicide as weak and problematic.92 The genocide expansion does not provide for women or gender as a group. The crimes against humanity chapeau elements requires femicide to be widespread or systematic and against a civilian population, that could make acts of femicide by state omissions from states such as Mexico difficult to prosecute.93 When femicide is required to be a widespread attack on a civilian population, here women, it removes the ability to prosecute state omission on family violence, as women fitting into civilian population is problematic.94 Establishing femicide as its own core crime at the Rome Statute provides an international legal response to the current femicide epidemic that demonstrates international law in practice, particularly the mechanisms at the ICC, as receptive and a living instrument, responsive to women’s experiences of violence with aims to provide women with peace.

91 Trahan (n 86) 348. 92 Atencio (n 39). 93Hatas (n 46). 94 ibid.