Keeping the Promise of International Criminal Justice - prosecuting and adjudicating gender-based mass atrocity crimes in “non-territorial” States
Sammanfattning: Conflict is a breeding ground for gender-based violence. Previous discriminatory structures are reinforced and often result in conflict-related gender-based violence. In complex contexts characterized by religious, ethnic and / or political frictions, the vulnerability of some individuals is exacerbated. During the ISIS attack in the Sinjar region in northern Iraq, the religious minority group Yazidis was made the target. Through a systematic modus operandi, Yazidi men were murdered, and Yazidi women and children were captured and sold as slaves within ISIS for sex and forced labour. They were forced to convert to Islam and live according to strict religious rules as interpreted by ISIS. Survivors testify that they have been subjected to gross systematic violence and violations of their rights. Gender-based violence committed in a specific context can constitute genocide, war crimes and / or crimes against humanity under International Criminal Law, so-called mass atrocity crimes. The prosecution of perpetrators, who have committed crimes so heinous that they "deeply shock the conscience of humanity" and "threaten peace, security and well-being in the world", is of concern to the international community as a whole according to the State parties to the Rome Statute of the International Criminal Court. Nevertheless, investigations, prosecutions and verdicts fail to reflect the prevalence and magnitude of gender-based mass atrocity crimes both internationally and nationally. In the case of ISIS, many perpetrators enjoy impunity. The States of commission do not have the capacity to investigate and convict the perpetrators, and justice through the International Criminal Court is hampered by a lack of jurisdiction. National courts in "non-territorial" States, meaning on whose territory the crime has not been committed, are thus placed in the forefront in the fight against impunity for these perpetrators. This research claims that Sweden plays an important role, and therefore examines Sweden's ability to fight impunity by exercising universal jurisdiction over mass atrocity crimes and prosecute perpetrators under Act (2014:406) on criminal responsibility for genocide, crimes against humanity and war crimes. The analysis focuses on gender-based crimes against humanity, in particular persecution, in relation to an example case, Taha Al J, which is currently at trial in Germany. Crimes against humanity have never been adjudicated in a Swedish court. This, paired with the structural lack of legal attention to gender-based mass atrocity crimes both internationally and nationally, makes it a thorny issue. This research introduces intersectionality as a concept to demonstrate how Yazidi women were not targeted as Yazidis or women, but as Yazidi women. The research proposes that Swedish courts should adopt an intersectional approach when interpreting and applying paragraphs concerning gender-based crimes against humanity. The re-search shows how such method of interpretation, without violating the principle of legality, would contribute to the global fight against impunity for gender-based crimes against humanity through acknowledging, investigating, prosecuting and ultimately adjudicating them in Swedish courts.
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