Complementarity Gap: Gender Based Violence as Crimes against Humanity in the Jurisprudence of the International Criminal Court and a Pakistani Domestic Accountability Regime

Abstract

The jurisprudence of the International Criminal Court (ICC) has progressively transformed gender-based violence (GBV) from a peripheral incident of armed conflict into a distinct and central category of international crime. Through Prosecutor v. Bemba, Prosecutor v. Ntaganda, Prosecutor v. Ongwen, and Prosecutor v. Al Hassan, the Court has recognised rape, sexual slavery, forced marriage, forced pregnancy, and gender persecution as forms of crimes against humanity under Article 7 of the Rome Statute, extending liability through the doctrine of command responsibility and adopting an increasingly intersectional understanding of gender-based harm. This article thus queries what this separation of powers requires of a non-Rome parties' State   like Pakistan that has other parallel obligations under international human rights law. Building on the doctrinal and comparative analysis and research on ICC case law, Pakistan's constitutional and statutory features, and the case law of the Pakistani judicial system, the article suggests that the difference might be characterized as a “complementarity gap” that is, the difference between the institutional capacity which complementarity assumes and the nature and capacity of the Pakistani domestic legal system to investigate and prosecute gender-based crimes to an equivalent level. But at the most visible level, the doctrinal, institutional and socio-legal aspects which have been consistently lacking in Pakistan since the beginning in terms of convictions (about five per cent) versus the backlog of nearly 40,000 pending GBV cases are exactly this type of gaps and can only be filled with doctrinal, institutional and socio-legal reform in a combined manner and not legislative amendment alone as the article argues..