University of Pennsylvania Journal of International Law

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This Article argues that legal actors use narratives of gendered violence to generate intelligible victimhood categories when investigating and prosecuting sexual harm. Building upon several critical legal traditions, I argue that lawyers working on issues of sexual violence are constantly engaged in a dual process of interpretation wherein they attempt to confirm (1) if a sexual crime has occurred, and (2) whether the crime is severe enough to deserve inclusion in justice efforts. Instead of understanding this process as a simple “investigation” into a pre-existing reality, I argue that legal actors constitute both the crime and the identities of the legal subjects through their work, (re)producing a particular narrative order wherein only intelligible forms of sexual victimhood can be adjudicated by legal actors.

To demonstrate this, I focus on international criminal law, examining the interpretations which influence the categorization of sexual violence as an act of genocide. Using the ongoing justice efforts for the Rohingya genocide as a case study, I show how legal actors working with multiple international mechanisms (i.e., the U.N. Fact-Finding Mission, the International Court of Justice, the International Criminal Court, and universal jurisdiction courts) engage in this dual process of interpretation, building upon hegemonic beliefs about gender and sexuality to interpret the reality and severity of the crimes presented to them. Notably, I show that many lawyers involved in these justice efforts understand genocidal sexual violence as a crime committed solely against cisgender women, despite ample evidence which points to how such acts can also be committed against men, transgender women, and individuals outside the gender binary. Building upon this case study, I discuss how different understandings of harm can result in the dismissal of certain acts according to gender, questioning the utility of an identity-based concept of “gender” as a tool for interpreting criminal actions. Only by understanding gender as an always-incomplete system of power relations (rather than a concrete value that a person embodies or possesses) can justice systems like international criminal law move beyond the narrow system of interpretation which currently hierarchizes the investigation of sexual violence.