On the 100th Anniversary of International Women’s Day, Danya Chaikel, an advocate for women’s rights and justice, analyses the treatment of sexual violence by the institutions of international justice. She examines the development of gender-based crimes, outlines the current proceedings and looks at the methods used by the courts to ensure representation of women both as lawyers and as victims.
“It is now more dangerous to be a woman than to be a soldier in modern conflict”
– Maj. Gen. Patrick Cammaert, 2008, former UN Peacekeeping Operation Commander in DRC
According to UN Women, an estimated 250,000–500,000 women and girls were raped during the 1994 Rwandan genocide1; 20,000–50,000 women and girls were raped during the Bosnia-Herzegovina war in the early 1990s2; and 50,000–64,000 internally displaced women in Sierra Leone were sexually attacked by combatants during the 10 year conflict of the 1990s3. The crisis continues today with an average of 40 women and girls raped every day in South Kivu, DRC,4 bringing the total number of women and children having been raped in the country’s decade long conflict to over 200,000.5
These crimes are now broadly understood to be used as a strategy by armed groups to systematically terrorise enemies and devastate community life, with the aim of achieving military or political victory.6 The horrifying recent examples of widespread sexual violence are not new to the scourges of war and conflict, but the brutality of these shocking events were well publicised and has finally resonated with the international legal community. The argument that sexual violence during conflict is inevitable is no longer acceptable. It is now unfeasible to ignore these atrocities or be passive about punishing crimes of sexual violence. Rape of women and girls is at last being recognised and prosecuted as a weapon of war.
And yet most sexual violence during conflict falls under the radar, because of weak national protection measures, inadequate investigative and judicial procedures and few direct services for survivors.7 Even at the ICC, according to Prosecutor Luis Moreno-Ocampo, an obstacle to prosecuting gender crimes is that these crimes are frequently underreported.8 Due to fear and social stigma, relatively few affected women find the strength to come forward with their stories of sexual violence or rape. UN High Commissioner on Human Rights Navanethem Pillay claims the international community “is only addressing the tip of the iceberg in terms of cases examined, and merely scratching the surface in terms of our understanding of how women experience violence”.9
ICTY, ICTR and SCSL
Gender crimes have only been seriously prosecuted internationally during the past decade. The 1990s saw the establishment of the three flagship international criminal institutions – the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL). Several other ad-hoc and hybrid international criminal courts have subsequently been formed. These three institutions were set up to try those individuals most responsible for genocide, crimes against humanity and war crimes committed during particular armed conflicts. These three general categories of atrocity crimes may include sexual violence committed against civilians.10
The ICTR led the way in this field, breaking ground with the Akeyesu11 decision of 1999, which was the first decision defining rape as an act of genocide. The ICTR Chamber I held that “rape and sexual violence certainly constitute infliction of serious bodily and mental harm on the victims” and that “these rapes resulted in physical and psychological destruction of Tutsi women, their families and their communities. Sexual violence was an integral part of the process of destruction”. An important theme arising from this case and other ICTR decisions is that sexual violence against civilians, mostly took the form of rape which was an instrument of genocide committed against the Tutsis.
Following the historic Akeyesu ruling, the ICTY followed suit with many decisions adding to the jurisprudence of gender-related atrocity crimes. Of note are the tribunal’s judgements related to individual liability in mass rape crimes. The ICTY judgments show that gender-based violence was an instrument of ‘ethnic cleansing’ against civilians during the conflicts in the Balkans. There was also sexual violence in detention centres, sometimes involving the sexual slavery of women and girls.
The SCSL further broadened the prosecutorial scope of gender-based crimes by expanding crimes against humanity to include forced marriage under the appropriate circumstances. Cases involved combatants kidnapping women and girls and forcing them into marriages. These women and girls, branded as the militia’s ‘bush wives’, were further subjected to rape and to other forms of sexual violence.12
Collective jurisprudence from the three judicial bodies confirms that sexual violence committed during armed conflicts may amount to various forms of atrocity crimes. Assuming all other legal requirements are satisfied (including the collaboration of evidence, the elements of the crime are proven, the appropriate standard of proof is met, etc.) then rape can amount to a crime against humanity and a war crime; rape can amount to torture as a crime against humanity and a war crime; rape and/or other sexual violence can be an instrument of genocide if it amounts to acts causing serious bodily or mental harm to members of the targeted group; rape and/or other sexual violence can form part of persecution and enslavement as crimes against humanity; and sexual violence can form part of outrages upon personal dignity and inhumane treatment as war crimes.13
This jurisprudence paved the way for a new conception of sexual violence against women beyond the private or national context, to a widespread recognition that these acts may constitute grave breaches of international criminal law. Yet the global condemnation of sexual violence as an atrocity crime is a very recent advancement, and one that is still in the making. Only in June 2008 did the UN Security Council adopt Resolution 1820 connecting gender-based crimes with the maintenance of international peace and security, insisting on the “immediate and complete cessation by all parties to armed conflict of all acts of sexual violence against civilians”.14
The movement towards ending an era of impunity for widespread gender crimes continues with the ICC, both in terms of the substantive law as well as with the very structure of the Court. There has been dramatic progress, but there is still much work to do.
The Rome Statute, establishing the permanent International Criminal Court, was adopted by the UN diplomatic conference in Rome on 17 July 1998. The Statute marks the first time an international treaty codifies heinous forms of violence against women as crimes against women as crimes against humanity, war crimes, and in some situations, genocide. Under these three principal crimes the ICC Elements of Crime extensively codify specific crimes against women including rape, sexual slavery, enforced prostitution, forced pregnancy, forced sterilisations, sexual violence, gender-based persecution and trafficking of persons particularly of women and children.
Cases before the ICC
All present situations before the ICC include charges of sexual violence or rape. Of the 17 indictees, 12 have been charged with gender-related crimes. There is no denying that the Court is taking these issues seriously. Last year the ICC saw many judicial firsts for gender justice. For the first time charges of genocide were brought in the situation of Sudan, which is found in the second arrest warrant of Omar Hassan Ahmad Al Bashir, including alleged acts of rape.15
Central to the highly publicized case The Prosecutor v. Jean-Pierre Bemba Gombo are charges of rape as both a war crime and as a crime against humanity.16 The trial opened in November 2010 with the Court’s first ever all female bench of judges – presiding over the case is Judge Sylvia Steiner from Brazil who has expertise in women’s rights. By her side are Judge Joyce Aluoch from Kenya and Judge Kuniko Ozaki from Japan. This means female judges from Latin America, Asia, and Africa are trying the first ICC trial which is largely focussed on sexual violence against women during conflict.
Looking beyond these advancements, Brigid Inder, Executive Director of Women’s Initiatives for Gender Justice, claims there is still room for improvement. She says last year 40% of charges for gender-based crimes before the ICC were dismissed in cases for which confirmation hearings had been held, with judges mostly finding there was insufficient evidence in these applications. Moreover she claims there is an under-representation of women participating as victims, even though all the situations before the Court include gender-based crime allegations to various degrees.17
Gender Sensitive Rules & Procedures
When the ICC was designed in 1998, serious attention was paid to ensuring court procedures are gender sensitive and women are not re-traumatised during court proceedings.
The Rome Statute and the ICC’s Rules of Procedure and Evidence (Rules) include strong protective measures for victims and witnesses, especially those who survived gender-based violence. It is the explicit responsibility of each organ of the ICC to ensure the safety, psychological health, dignity and confidentiality of female victims and witnesses.18 The Rome Statute established the Victims and Witnesses Unit to provide counselling, protection, and other forms of support for female victims.19 To avoid re-traumatising sexual violence survivors, the ICC is mandated to carefully protect women who testify in court by requiring the Prosecutor to be sensitive to their interests during investigations and prosecutions.20 Experts on traumatised women are called as witnesses, and judges are tasked with preventing counsel from harassing or intimidating women on the stand. Female witnesses and victims can have legal representatives, a court-appointed support person, and the presence of a psychologist or family member during testimony. Women and girls do not have to testify in front of their assailant, and their voice and image can be altered to protect their identity. To protect their confidentiality and to avoid further frightening experiences, Chambers may authorise women to testify in closed hearings, through video, or by other means.21
The Rome Statute and Rules also permit extensive direct participation of victims in ICC proceedings which is a first for international criminal law. Even when not called as witnesses, those approved as victims may express their views in court through a designated representative. There are also provisions in the Rome Statute for victims to be awarded reparations, compensation and rehabilitation.22 The Statute also established the Trust Fund for Victims (TFV) which provides assistance to victims of crimes within the jurisdiction of the Court.23 The TFV estimates that approximately 42,300 victims are benefiting directly from their general assistance, and an additional 182,000 of their family members are benefiting indirectly through the improved wellbeing and reduced stigma which their programs promote.24
Gender Sensitive Staffing Policies
For there to be real progress in ending impunity for gender crimes, ICC founders also thought to include in the Rome Statute, and later in the Rules, appropriate gender sensitive policies at an operational level. The Statute requires that judges, legal advisors in the Prosecutor’s Office, and Registry staff will have expertise in issues pertaining to violence against women and children.25
For the election of ICC judges, the Rome Statute requires States Parties to take into account the need for fair representation of female and male judges,26 and requires that the prosecutor and registrar do the same when hiring staff. Particularly Rule 19(e) of the Court’s Rules of Procedure and Evidence requires staff with “Gender and cultural diversity” in the Victims and Witness Unit. Under Article 42(9) of the Rome Statute, the Office of the Prosecutor must appoint a Special Gender Adviser to the Prosecutor, and Prof. Catharine A. MacKinnon was selected as such in 2008. She is mandated to provide strategic advice on sexual and gender violence.
The policies on gender equity are ostensibly working and today more than half of the ICC’s Judges are women – 11 of 19. In terms of staffing, the ICC fared well in 2010 with women representing 47% of all Court staff and 50% of all professional staff. However, women remain underrepresented in most senior management positions.27 The ICC’s governing body, the Assembly of States Parties recognised this disparity and recommends the Court “continue to build on the strides it has made in the recruitment of female staff, particularly at senior levels.”28
Even though all situations before the ICC include gender-based crimes committed in Africa, as of January 2010, only 61 of the total of 335 counsel registered to practise before the ICC were women and less than four percent of counsel were African women. As a result, the ICC launched a “Calling African Female Lawyers” campaign in cooperation with the International Bar Association with the aim to increase the number of African women lawyers permitted to represent victims and defendants before the ICC. These efforts resulted in an increase in the number of female African counsel on the defence counsel list.29
The way forward
Gender certainly matters at the ICC. The Court has arguably been a catalyst for a wide range of positive changes for women under international criminal law – the recognition of and codification of gender-based crimes as atrocity crimes, the protection and participation measures for female victims and witnesses in the lead up and during ICC trials, the provisions for reparations for female victims and the hiring practices requiring gender expertise and aiming for equal gender representation for both judges and Court staff.
There is much to commemorate for women’s international criminal justice in the 100th year since the first International Women’s Day. Yet there remains much to improve upon in the face of continued systematic and brutal sexual violence in several conflict situations around the world. International criminal laws and judicial institutions have come a long way in just over a decade, but the particular effects of atrocity crimes on women need further attention. It is time for a transparent accounting of these heinous crimes, in order to bring about better judicial accountability of perpetrators and proper redress for victims.
Conference on Systematic Sexual Violence
For those who would like to learn more or become involved, there is an upcoming international Conference on Systematic Sexual Violence in The Hague from 7-8 April 2011. The focus of the Conference will be causes and responses to systematic sexual violence, and the rights and perspectives of victims, and will bring together various participants, including ICC, international and national court officials and personnel; government officials; academic specialists; those working with victims, NGOs, journalists, medical personnel and activists. To register (no fee) for the “Hague II: Colloquium on Systematic Sexual Violence and Victims’ Rights” click here.
Danya Chaikel, J.D, B.A., is External Relations Assistant in the ICC Office of the President in The Hague. She is a Canadian lawyer having worked as an advocate for various human rights and justice issues including violence against women, trafficking in women and girls, refugee rights and international criminal justice.
All opinions expressed in this article are the author’s only and do not reflect those of the International Criminal Court