How Gender and the Right to Culture have Influenced the Development of Modern International Criminal Law: A Study on the Crime of Gender-Based Persecution under the Rome Statute of the International Criminal Court

Abstract: Nearly a decade has passed since the adoption of the Rome Statute of the International Criminal Court (''Rome Statute'') on 17 July 1998. International criminal law has advanced considerably during this period, particularly with respect to the crime of gender-based persecution. This is despite the fact the International Criminal Court (''ICC'') has not yet observed its first trial concerning this crime. This momentous legal advancement primarily spurred from the establishment of ad hoc criminal tribunals in the 1990s, following the mass violations of human rights in the former Yugoslavia and Rwanda. Simultaneously, a vast cross fertilisation of principles between various international legal disciplines also played a substantial role in the expansion of international criminal law. Due to these developments gender-based persecution is now statutorily recognised as a crime against humanity under Article 7(1)(h) of the Rome Statute. This remarkable legal advancement should not be undermined. The core theme of this thesis is the hypothesis that human rights law, international humanitarian law and international criminal law are irrefutably linked. This proposition is to be demonstrated by the interconnection, interrelation, impact and influence cultural rights have had on the inclusion, definition and implementation of gender-based persecution under the Rome Statute. The overall goal of the paper is to illustrate: (1) the symbiosis of different legal disciplines&semic (2) the interrelation between culture and gender&semic and (3) the influence of these two limbs on the development of international criminal law. This paper will delve into the nature of culture and cultural rights with a brief reflection on the theory of cultural relativism. This paper will further discuss the present legal framework and protection mechanisms under human rights law and international humanitarian law for cultural rights. The interrelationship between gender and culture will be examined to reveal the significant influence these concepts have had on the development of international criminal law. A historical overview of the crime of persecution will be undertaken to establish the appropriate grounding for the key component of this paper, that being, a study on the crime of gender-based persecution under the Rome Statute. Ultimately, this thesis will illustrate the social, cultural and legal importance of prosecuting gender-based persecution (as a crime against humanity) on an international level.