Continuity and Change: Prosecution of Sexual Violence in the International Criminal Court

This research seeks to explore gender legacies of International Criminal Law and how these can be diluted or strengthened according to context. The inclusion of sexual violence against women and girls in ICC cases, like the Thomas Lubanga Dyilo and Jean-Pierre Bemba Gombo cases analysed in this study, may depend on a number of contextual factors. Three key factors were found to matter most: personality and personal decisions of the Prosecutor; institutional changes inside the ICC, and pressures from NGOs. All three were found to be relevant in the enhanced prioritisation of sexual violence crimes in the case of Bemba compared with their exclusion from the Lubanga case. In exploring why sexual violence was first excluded and then included in the prosecution and the trials of the ICC, this study interrogates institutional and contingent factors that influence decision-making at the investigation, charging, trial, sentencing and judgement stages of international criminal trials at the ICC. By tracing institution processes and their ‘nestedness’ in past legacies, the exclusion and subsequent inclusion of sexual violence in ICC trials, the question of inclusion and exclusion was found to be more nuanced than expected, with elements of inclusion and exclusion of sexual violence in both the Lubanga and Bemba cases.