Failing the Survivors: The ICC, SGBV, and the Future of International Accountability
Sexual and gender-based violence (SGBV) remains one of the most pervasive human rights violations, cutting across cultures, regions, and classes to fracture communities and destabilise societies. When committed in the context of armed conflict or persecution, such acts can constitute war crimes, crimes against humanity, or even genocide under international law. The International Criminal Court (ICC) was established, in part, to ensure accountability for these atrocities and to step in when national systems fail. Yet despite landmark prosecutions and evolving legal frameworks, the ICC’s record on addressing SGBV remains deeply uneven, constrained by structural, procedural, and cultural barriers. Failing to prosecute SGBV explicitly not only denies survivors recognition of their specific suffering but also risks obscuring the broader social and political functions of sexual violence in conflict. Achieving genuine justice and reconciliation will require not only stronger enforcement of existing international mechanisms but also the implementation of locally grounded, gender-sensitive, and restorative mechanisms that address both individual accountability and systemic complicity.
The evolution of the ICC’s prosecutorial strategies reflects a gradual yet significant shift toward recognising sexual and gender-based violence as a core concern in international criminal law. Early cases, such as Bosco Ntaganda in 2006, notably omitted charges of sexual violence, exemplifying the broader historical marginalisation of such crimes. It occurred despite the Rome Statute's explicit identification of a wide range of sexual acts as crimes against humanity and war crimes, alongside its recognition of gender-based violence as a distinct offence. This pattern began to shift in 2012, when a second arrest warrant for Ntaganda expanded the charges to include rape and sexual slavery as both crimes against humanity and war crimes. Subsequent prosecutions reinforced this trajectory: the 2015 Dominic Ongwen case marked the first instance in which the ICC charged forced pregnancy, alongside rape, sexual slavery, and forced marriage, while the 2016 Jean-Pierre Bemba judgment established command responsibility for sexual violence perpetrated by subordinates. Collectively, these cases underscore the ICC’s growing institutional commitment to prosecuting SGBV, further articulated in the 2014 Policy Paper on Sexual and Gender-Based Crimes, which set out how the Office of the Prosecutor would “integrate a gender perspective and analysis into all of its work.” Yet despite these formal advances, the Court’s overall progress in addressing SGBV remains limited in practice, with persistent gaps in both implementation and legal interpretation.
The ICC has sustained a pattern of inconsistency in its handling of SGBV cases that have made it to court. In the prosecution of Germain Katanga, for instance, the Court pursued charges for war crimes but omitted direct allegations of sexual and gender-based violence, despite substantial evidence that such crimes were widespread in areas under his control. This omission represented a missed opportunity for the ICC to broaden its legal framing of SGBV crimes and to acknowledge the specific harms inflicted on individuals. In the case of Prosecutor v Mathaura, the ICC’s Pre-Trial Chamber II concluded that “the evidence placed before it does not establish the sexual nature of the acts of forcible circumcision and penile amputation visited upon Luo men,” exposing both the difficulty of applying the Rome Statute’s open-ended category of “other acts of sexual violence” and the Court’s reluctance to clarify its scope. The Jean-Pierre Bemba case initially appeared to mark progress as the ICC's first conviction focused overtly on SGBV, yet the subsequent acquittal on appeal underscored the fragility of these advances. Moreover, the Bemba proceedings revealed enduring doctrinal constraints: the pre-trial chamber declined to classify rape as torture and failed to draw clear legal distinctions between different forms of SGBV. Taken together, these setbacks highlight an ongoing disconnect between the ICC’s rhetorical commitment to addressing sexual violence and its practical effectiveness in securing accountability, resulting in the risk of survivors’ experiences being rendered invisible.
Effective accountability for sexual and gender-based violence requires the ICC to strengthen its internal prosecutorial practices while embracing complementary, context-sensitive mechanisms that integrate local norms, community engagement, and restorative approaches. The ICC can take immediate steps to improve its response by fully leveraging the tools already available within the Rome Statute, consistently charging the full spectrum of crimes under Article 7(1)(g), and ensuring that acts such as forced marriage, sexual slavery, and other forms of sexual violence are explicitly recognised in indictments and trials. Investigative effectiveness, which faces challenges such as under- or non-reporting due in part to stigma and limited domestic investigations, can be enhanced through expanded and deepened partnerships with local civil society organisations, survivor networks, and specialised field investigators – particularly in areas affected by ongoing conflict or weak judicial infrastructure – combined with trauma-informed procedures that protect and empower witnesses. While the Office of the Prosecutor’s Strategic Plan 2012-2015 initiated training for judges, prosecutors, and investigators on gender dynamics, cultural context, and intersectional vulnerabilities, evidence from ICC cases suggests that these efforts require more systematic implementation and reinforcement to effectively strengthen the Court’s capacity to secure meaningful convictions for sexual and gender-based crimes.
Beyond internal reforms, hybrid accountability mechanisms – such as UN-assisted or locally grounded tribunals combining international and national legal actors – offer a complementary avenue to address SGBV. In Afghanistan, for instance, prosecution of the Taliban’s systemic abuses against women and girls – including restrictions on education, forced marriages, and targeted violence – could benefit from a cosmopolitan or UN-assisted tribunal to make justice culturally relevant while maintaining adherence to international norms. Involving Afghan jurists and integrating local legal frameworks would heighten legitimacy, bridge gaps between Western and Muslim legal perspectives, and ensure that sexual and gender-based crimes are unambiguously recognised rather than overlooked. This approach also supports broader nation-building efforts, reinforced through international assistance in technology, training, and financial resources to establish a viable domestic judiciary. Such hybrid models are uniquely positioned to bridge gaps between universal legal standards and local realities, addressing not only individual criminal responsibility but also the broader structural and societal factors that perpetuate sexual violence.
Finally, restorative and community-based initiatives – including truth commissions, people’s tribunals, and locally grounded healing practices – can provide survivor-driven spaces for acknowledgment, reconciliation, and transformation. In Afghanistan, these approaches could complement formal prosecutions by addressing the social and cultural reintegration of survivors and the communities affected by Taliban rule. By combining rigorous, gender-sensitive ICC prosecutions with hybrid and restorative approaches, international justice can move toward a more holistic model. This model not only delivers accountability for perpetrators but also promotes societal legitimacy, strengthens the capacity of local institutions, and supports the long-term recovery of survivors and communities. In practice, such an approach acknowledges that justice for SGBV must be multidimensional – encompassing legal redress, social healing, and structural change – particularly in post-conflict or fragile state contexts where violence is deeply embedded in social and political structures.
Image courtesy of Tony Webster via Wikimedia, ©2024. Some rights reserved.
The views and opinions expressed in this article are those of the author and do not necessarily reflect those of the wider St. Andrews Foreign Affairs Review team.
