Arresting “Mother Russia”: Female Defendants and Gender(ed) Justice in International Criminal Tribunals

With news breaking that the ICC has publicly issued its first two arrest warrants in relation to the Situation in Ukraine, much discussion has focused on the likelihood (or lack thereof) of Russian President Vladimir Putin being surrendered to the Court, the potential strategy behind the selection of charges, the issue of immunities, and the potential for a deferral request under Article 16 of the Rome Statute.

However, the arrest warrants are notable for another reason. Ms Maria Lvova-Belova, the Russian Commissioner for Children’s Rights, is now the second woman to be the subject of an arrest warrant at the ICC. The arrest warrant charges Ms Lvova-Belova with committing the war crimes of unlawful deportation of population and of unlawful transfer of population (Articles 8(2)(a)(vii) and 8(2)(b)(viii)), directly, jointly with others and/or through others (Article 25(3)(a)). The charges relate to the alleged Russian policy of removing Ukrainian children from orphanages and care homes and putting them up for adoption for Russian families.

This post discusses the gendered experiences of female defendants in international criminal tribunals. While female defendants have historically been the subject of gendered language, I argue that the arrest warrant against Ms Lvova-Belova and any subsequent proceedings give ICC actors the opportunity to adopt a gender-just approach when dealing with a female defendant.

Female Perpetrators and Defendants

Traditionally, hostility and aggression have been viewed as masculine traits. In contrast, femininity has been associated with peaceful and caring attributes. As such, conflict has typically been viewed as a masculine domain. Men are stereotypically fighters and combatants, while women play a passive role and are in need of protection. Women certainly can be, and are, the victims of violence during war. However, this is not the only role that women can occupy in situations of conflict.

While it was famously pronounced at the Nuremberg International Military Tribunal that ‘crimes against international law are committed by men, not by abstract entities,’ international crimes can also be committed by women. Historically, women have been involved in conflict and mass atrocity in a range of different ways: they have supported violent regimes as administrative or secretarial assistants, profited from violence through pillaging and looting, planned acts of violence in their capacity as political leaders, and have been directly involved in violence as fighters and combatants.

Despite this, women comprise less than 2% of defendants in international criminal tribunals (Hodgson 2017, at 341). In total, six women have been named in arrest warrants at international criminal tribunals for international crimes. In addition to this, women have also been prosecuted for administration of justice offences at the ICTY, SCSL and STL. Given that international criminal tribunals focus on prosecuting those people who are ‘most responsible’ for mass atrocity, the small number of female defendants in these tribunals is likely due, at least in part, to women’s historic and continued underrepresentation in senior positions in governments and militaries.

Gendered Justice

Female defendants’ actions are often scrutinised with reference to two sets of standards: whether they have breached the law and whether they have acted contrary to gender norms. My own research identified three gender narratives that were used in international criminal tribunals when discussing the conduct of female defendants: wife narratives, mother narratives and monster narratives.

The wife narrative emphasised the defendant’s relationship with her husband to explain or justify her conduct. For example, at the ICC in the Situation in Côte d’Ivoire, Simone Gbagbo was described by PTC III as having ‘instructed the pro-Gbagbo forces to commit crimes against those who posed a threat to her husband’s power’ (at [30], emphasis added). In contrast to the rest of Laurent Gbagbo’s inner circle, who participated in the violence ‘in order to retain power by all means,’ Ms Gbagbo was described as committing crimes, not to retain her own political power or her party’s political power, but rather, ‘her husband’s power.’ Despite being ‘an influential figure in her husband’s government,’ who ‘had her own cabinet within the structure of the Presidency’ and ‘took state decisions,’ Ms Gbagbo’s offending was not attributed to her own political ambitions, but rather, her relationship with Mr Gbagbo.

The mother narrative emphasised the defendant’s status as a mother or her motherly qualities. For example, at the ICTR, Pauline Nyiramasuhuko used her status as a mother to suggest that she was incapable of committing crimes in conjunction with her son:

Q: Madam, did you, at any point in time between April and July 1994, and I am suggesting this to you, order Interahamwe, led by your son, Shalom, to abduct, rape, kill, Tutsi refugees who were at the office of the prefecture?

A: No, I believe I answered that question. That is impossible. Nobody can hurt another in such a manner. Supervise acts committed by one’s child. That saddens me a lot… (Transcript, 6 October 2005, at 7)

The defence also drew on Ms Nyiramasuhuko’s motherly qualities and career as a social worker to highlight to unlikeliness of her having committed crimes against women. As someone who had ‘spent all her life working for all the women of Rwanda’ and who had ‘devoted her life to the cause of women’, Ms Nyiramasuhuko insisted that she couldn’t have committed the crime of rape: ‘I wouldn’t do that against a Rwandan woman’ (Transcript, 6 September 2005, at 22).

The monster narrative portrayed women who violated gender norms as unnatural and abnormal. Thus, while Ms Nyiramasuhuko argued that her gender prevented her from committing crimes, the prosecution implicitly suggested that her conduct was worse because of her gender. In their closing statement, the prosecution quoted a witness’ testimony that Ms Nyiramasuhuko ‘seemed to take pleasure in ordering the rapes’ and argued that Ms Nyiramasuhuko ‘uttered some of the most frightening words that could come out of the mouth of a woman, a mother, and the person who was in charge of the department that had the protection of family and women as its key mandate’ (Transcript, 20 April 2009, at 30, emphasis added). This statement indicates that Ms Nyiramasuhuko’s behaviour was scrutinised through a gendered lens. While the crimes would still have been serious if they were committed by a man, they were particularly abhorrent in Ms Nyiramasuhuko’s case because they were committed by ‘a woman [and] a mother’ who ‘took pleasure’ in acts of sexual violence against other women.  

Similar gender narratives have the potential emerge in Ms Lvova-Belova’s case. Ms Lvova-Belova has been referred to as “Mother Russia” in the media. In addition to her role as Commissioner for Children’s Rights, Ms Lvova-Belova is mother to 5 biological children and 18 adopted children. It is possible that Ms Lvova-Belova might seek to draw on her motherly qualities to explain her care and concern for Ukrainian children. Indeed, she reportedly commented that the ICC’s arrest warrant demonstrated ‘appreciation’ for her work ‘to help the children of our country’. However, it is equally likely that some may see Ms Lvova-Belova as monstrous and wonder how a mother, whose job was to protect children, could be involved in alleged crimes towards children.

Gender-Just Approaches to Female Defendants

Gender narratives not only reflect pre-existing stereotypes about femininity, domesticity and conflict, but they also have the potential to reinforce these stereotypes. By connecting women’s actions to their caregiving abilities and relationships with men, these narratives deny women’s agency and status as political actors. Engaging with these narratives thus has the potential to undermine broader efforts to achieve gender justice through international criminal institutions.

There may be times when it is relevant to consider a defendant’s gender in determining whether he or she has committed the crime in question. For example, in Im Chaem’s case at the ECCC, she argued that her authority over security matters was limited ‘due to the prevailing gender based system where it was highly unlikely that a female cadre could have played any significant role in affairs related to security’ (at [176]). However, ultimately, a gender sensitive approach to a female defendant requires focusing on her alleged conduct rather than her compliance (or lack thereof) with gender norms.

If proceedings against Ms Lvova-Belova proceed, ICC actors have the opportunity to refuse to engage with the gendered language that is commonly used when describing and analysing the behaviour of female defendants. While Ms Lvova-Belova may be called “Mother Russia” by some, the key issue for the ICC is not Ms Lvova-Belova’s adherence to traditional gender roles, but rather, the extent to which Ms Lvova-Belova is or is not guilty of the crimes charged.

Photo: ‘The impressive Mother Russia statue, as visited by the Journey of Discovery on a tour of Volgograd’.