Intersectionality Must Become a Key Principle of International Crime Prosecution

In recent years, intersectionality has taken root in international justice, as a principle and approach, and as demonstrated by jurisprudential developments, accompanied by discussions, 1 policies, 2 scholarship 3 and guidance. 4 Intersectionality expands existing approaches that international courts and investigative mechanisms have sought to further – such as survivor-centered, gender- or child-competent approaches. 

Such developments are driven by the necessity for a more nuanced analysis of systems of power that perpetuate conflict and the impact of structural mass violence on communities. Legal verdicts that do not reflect the role of socio-economic and political hierarchies in shaping the intent of structures and individuals that perpetrate mass violence, fall short of justice. A failure to comprehensively account for the full spectrum of harms experienced by affected persons and communities not only fails them in the aftermath of conflict, but risks recurring crimes in the future, by overlooking the causal systems and factors that drive conflict in the first place.

This article showcases how courts and human rights mechanisms have moved beyond a single axis lens by employing intersectionality as a principle and approach in the domestic and international prosecution of international crimes. This emerging area of practice provides strategies for non-discriminatory justice and reparations for international crimes in furtherance of substantive equality.

Israel’s Policies Have a Disproportionate Impact on Palestinian Women

In its Advisory Opinion on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem (19 July 2024), the International Court of Justice (ICJ) foregrounds an intersectional approach, by concluding that “the regime of comprehensive restrictions imposed by Israel on Palestinians in the Occupied Palestinian Territory constitutes systemic discrimination based on, inter alia, race, religion or ethnic origin,” (Advisory Opinion, para. 223). The ICJ further held that while prohibited discrimination in customary international law constitutes the unjustified differential treatment between persons belonging to different groups, “that differential treatment might not be experienced by all members of the Palestinian group in the same way, and that some members of the group might be subjected to differential treatment on multiple grounds” (Advisory Opinion, paras. 188-190).

Israel's regime constitutes systemic discrimination on Palestinians in the Occupied Palestinian Territory, based on race, religion or ethnic origin.

In her declaration, Judge Hillary Charlesworth reinforces these findings through her analysis of the distinct experiences of Palestinian children and women. For example, she hones in on how the residence permit system prevents thousands of children from living with their parents. She also highlights the impact of the practice of property demolition in creating a deep-rooted feeling of unsafety, which particularly affects children because of their age (Declaration, para. 9). 

In relation to women and girls, Judge Charlesworth explains the additional and specific impact of the residence permit system on women, as they often rely on male spouses for their residence status. She also articulates a potential chilling outcome of this reality: that “Palestinian women may remain in violent or abusive marriages out of fear of deportation or separation from their children” (Declaration, para. 7). Judge Charlesworth also explores how water shortages particularly affect Palestinian women and girls because they have additional needs due to hygiene and privacy and also are responsible for securing water for household use (Declaration, para. 6). As such, she writes, “A multiple or intersectional approach sheds light on the complexity of discrimination in this case: discrimination may be experienced differently by differently situated individuals sharing a Palestinian identity” (Declaration, para. 5).

This approach resonates with the findings of other human rights mechanisms. The Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem has documented the disproportionate impacts of Israel’s policies on Palestinian women, for example, in the sphere of employment. 5

When Gender Identity Is Used as Grounds for Human Rights Violations

In analyzing the work of the Independent International Fact-Finding Mission on the Islamic Republic of Iran, Andrea Richardson and Alexa Koening highlight the intersectional nature of the attacks carried out during the Iranian government’s violent crackdown on protesters. They note that civilians residing in Kurdish-majority or Baluch-majority regions, suffered enhanced targeting and suffering especially by way of violent attacks and harsher punishments, with families from disadvantaged socio-economic backgrounds disproportionately targeted.

Persons were targeted because certain expressions of sexuality or gender identity were inconsistent with the Taliban’s policy on gender.

At the International Criminal Court (ICC), several developments exemplify intersectionality in practice. The two arrest warrants against Taliban leaders (8 July 2025) recognize women, girls and LGBTQI+ persons as victims of persecution on gender grounds. The interpretation of gender in these warrants follows an intersectional approach that takes note of gender identity or expression and sexual orientation alongside age considerations. Pre-Trial Chamber II (PTC II) found that while the Taliban implemented a governmental policy that resulted in severe violations of fundamental rights and freedoms of the civilian population of Afghanistan as a whole, they have specifically targeted girls and women by reason of their gender, depriving them of fundamental rights and freedoms. Through decrees and edicts, girls and women were severely deprived of the rights to education, privacy and family life and the freedoms of movement, expression, thought, conscience and religion. Moreover, PTC II held that other persons were targeted because certain expressions of sexuality and/or gender identity were regarded as inconsistent with the Taliban’s policy on gender.

The Interplay of Different Discriminatory Factors Must Be Recognized

On 6 October 2025, the Trial Chamber of the ICC convicted Ali Muhammad Ali Abd-Al-Rahman, a Janjaweed leader, of the crime against humanity of persecution on political, ethnic and gender grounds, concerning Fur males perceived as belonging to, or being associated with, or supporting rebel armed groups. Echoing previous findings in Ntaganda (Ntaganda Trial Judgment, para. 1009), the Trial Chamber held that “the same victim or group of victims can be victimized under multiple grounds and a ‘combination of more than one [ground] may […] form the basis for the discrimination’ and as such a “victim can suffer a higher risk of victimization because of the intersection of different factors of discrimination” (Abd-Al-Rahman Trial Judgment, para. 787). 

Such foregrounding of intersectionality is a step forward, in contrast to past missed opportunities. For example, in the case against Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (23 January 2012), which involved the forced circumcision of Luo men in the context of post-election violence in Kenya in 2007-2008, PTC II of the ICC did not recognize violence against the genitalia of men as sexual violence. Instead, it found that "not every act of violence that targets parts of the body commonly associated with sexuality should be considered an act of sexual violence" (Confirmation decision, para. 265), thus ruling that neither forced circumcisions nor penile amputations against men were to be classified as sexual violence within the meaning of the Rome Statute, but rather as inhumane acts. 

The judgment thus fell short of recognizing the gender dimension of acts of sexual violence against Luo men, which was not characterised as sexual violence partly due to gender stereotypes pertaining to the “paradigmatic” form of sexual violence against men in conflict, typically penetrative anal rape. Yet, a single incident of sexual violence can be motivated by multiple purposes, such as exerting cultural superiority, in addition to targeting victims with specific violations due to their gender (2022, Gopalan, 276-278). PTC II found that the violence was intended to demonstrate the cultural domination of the perpetrators over the victims who were members of the ethnic Luo community (Confirmation decision, paras. 264-266), thus prioritizing a single-axis over a multi-axis approach that sidesteps the contextual reality that – at the intersection of ethnicity and gender – domination was also sought through sexual, reproductive and gender-based violence against Luo men. 

Gendered Power Structures Are Part of the Systemic Criminality of Conflicts

Intersectionality as a principle and approach surfaces the multitudes of intersecting identities and their connections to socio-economic and historical hierarchies “within the context of society”. These, in turn, inform perpetrators’ overlapping motivations in committing crimes, including through discriminatory targeting for certain crimes. When considering the role of perpetrators in mass violence, as Kirsten Campbell and Gorana Mlinarević emphasize, gendered systems of power and domination, including patriarchal structures are integral to the organisation and systemic criminality of conflict. Against a backdrop of militarized masculinities and ethno-nationalism, perpetrators of international crimes assert their identity within the hegemonic masculinity of their militarized groups, often in contrast to the identities of their victims (2022, Campbell and Mlinarević, 90).

Gendered systems of power and domination, including patriarchal structures are integral to the organisation and systemic criminality of conflict.

Writing about prosecutions at the International Criminal Tribunal for the Former Yugoslavia (ICTY), Campbell and Mlinarević note that "Because the ICTY understood the conflict in terms of warring ethnic identities, it privileges ethnicity as the primary dimension of identity", and thus, "ignores other relevant axes of social differentiation and subordination, such as gender, class, sexuality, and disability, that structure victimization or frames them within dominant ethnic discourses" (2022, Campbell and Mlinarević, 87). Consequently, women were seen through the identity that the perpetrator assigned them, irrespective of their own self-image. 

Similarly, at the Bangladeshi International Criminal Tribunals, the characterization of sexual violence as offences against chastity and honor, endorses the perpetrators’ constructions of sexual violence and their intent in perpetrating this crime – that is to destroy the enemy/victim community’s honor through the targeting of the women’s “sexual purity” (2021, Gopalan).

As Professor Patricia Hill Collins, a social theorist whose research and scholarship have examined issues of race, gender, social class, and sexuality, explains, "Because intersectional analysis of violence reframes violence not as a matter of human nature or circumstance, but as fundamental to power as domination, conceptualizing violence as a saturated site of intersecting power relations provides a potentially important perspective on political domination" (2019, Collins, 239). In this regard, an anti-racist and anti-colonial approach is an integral counterpart of intersectionality, as demonstrated by recent domestic prosecutions of international crimes.

An anti-racist and anti-colonial approach is an integral counterpart of intersectionality.

For example, the Special Jurisdiction for Peace in Colombia (JEP) recognized in its decisions and resolutions the victimhood of the territories of the Awá, Nasa, Eparara Siapidara and Wiwa Indigenous peoples and of the Afro-Colombian Black communities of Tumaco, Ricaurte and Barbacoas, as well as the Cauca River. Critically, the JEP grants legal recognition to the reality that conflict can harm natural entities and the cultural and spiritual relationships that exist between humans and the other-than-human world. Thus, the JEP afforded legal protection to violence, harm and impact that exists outside of the Western paradigm.

"There Is No Such Thing as a Single-Issue Struggle"

In the seminal Lina Ishaq case in Sweden, the first successful prosecution of forcible transfer of children as a genocidal act, the discriminatory targeting of Yazidi women and children for enslavement, among others, on grounds of their religion, culture, gender and age was explicitly recognized in the judgment. Similarly, in cases addressing ISIL crimes against the Yazidi before German courts, such as the Sarah O. case or the ongoing trial against Asia R.A. and Twana S., the intersectional dimensions of slavery crimes committed against women and children are explored, including through the explicit crimes charged, such as crimes against children and persecution on intersecting grounds of religion and gender.

Any recounting of struggles for justice and liberation must reflect the relevant multitudes.

In 1982, Professor Audre Lorde said, “there is no such thing as a single-issue struggle because we do not live single-issue lives.” Over four decades later, her words remain significant as intersectionality emerges as a critical principle and approach in the practice of international criminal law. As Lorde emphasized, any recounting of struggles for justice and liberation must reflect the relevant multitudes, without muting certain aspects for reasons of convenience. Intersectionality surfaces systems of hierarchies and related targeting in the context of structural mass violence and its impacts. For the law to be a meaningful conduit for justice, its interpretation and application must embrace the multi-issue struggles and multi-issue lives, that intersectionality brings to bear.