The Platform for Action has no monitoring or accountability mechanisms of its own. The use of instruments such as the ICC is therefore critical to successful implementation of Platform commitments. The ICC statute being a treaty obligation, unlike commitments made in a conference document such as the Platform, represents a legal commitment that exists regardless of change of government or of economic and political systems. It is important then for women’s rights activists to understand the ways in which some of the twelve critical areas of concern are addressed in the ICC statute and how to go about demanding accountability for violations of rights in these areas.

• ‘Gender’ in the ICC

One of the important and difficult achievements of the Caucus in the ICC Statute is the explicit inclusion of ‘gender’. All those who were involved in the Vienna, Copenhagen, Cairo and Beijing processes will recall the struggle around the term. While the document to be discussed in Beijing arrived with all references to gender placed in brackets (i.e. text that State delegates were unable to agree on and therefore had to be further debated), the Women’s Caucus was successful in bringing a draft statute to Rome that included all references to gender un-bracketed. Still, a struggle over the term ensued.

In Rome, the attack was gradual and spread throughout a number of working groups and finally came to a head when the Guatemalan delegation formally proposed the deletion of the term wherever it appeared in the Statute. Although some States supported the Guatemalan proposal because their delegates were bona fide sexists, others were honestly confused by the term. Both groups however insisted that the ICC statute is not a human rights document like Beijing or Vienna, but a criminal code, which requires clear and widely accepted concepts and definitions. This would have meant that the word “gender” could not be included since there was confusion as to what it meant. The debate ended when all sides agreed to keep the word but with a definition in Article 7 which reads: “it is understood that the term ‘gender’ refers to the two sexes, male and female, within the context of society. The term ‘gender’ does not indicate any meaning different from the above.”

Although this definition may be considered imperfect by some, having the term in a legal or “hard” international document like the ICC statute as opposed to a policy or “soft” document such as the Vienna, Cairo and Beijing Platforms, is a definite stride in the right direction toward real justice for women.

Nevertheless, women’s groups will have to be constantly vigilant that this narrow definition not become the norm in “soft” policy documents in addition to advocating that states recognize and honour the commitments made in these documents when negotiating future treaty instruments.

• Forced Pregnancy, Enforced Sterilization

Another significant development in the ICC statute is that it recognizes two forms of sexual violence that constitute grave violations of women’s reproductive rights – forced pregnancy and enforced sterilization. Since the war in the Balkans in the early 1990’s, the crime of “forced pregnancy” had been named as a result of the Serbian effort to force Bosnian-Muslim women to bear the children of rape. Again inclusion of this crime was a difficult contest for the Women’s Caucus. Like the term gender, the crime of ‘enforced pregnancy’ (as it was called in the pre-Rome prepcoms) was included in the draft without brackets. In the Rome conference, however, the Vatican, joined by a substantial number of the Arab countries, sought to re-open discussion on the crime. They argued that the crime of “enforced pregnancy” could invalidate all laws against abortion or could render Catholic hospitals liable should they fail to provide abortion to women made pregnant as a result of rape.

Few of the delegates to the ICC conference had participated in the Beijing and other Conferences where the Vatican’s obstructionist tactics were well-known. This inexperience of the delegates with the Vatican on issues of women’s rights favored the Vatican’s efforts to undermine our credibility with regard to the broad range of issues we sought to codify in Rome. Unlike the large presence of women in the women’s caucuses in the Beijing and Cairo conferences, women’s presence in the ICC conference in Rome did not go beyond 20-25 women at any given time during the five week negotiations. The Caucus was outnumbered by the combined force of the ever-multiplying Vatican priests and anti-choice NGO participants who were supported by leading Arab states.

Despite our belief that withholding abortion from raped women should be explicitly defined as a war crime and a crime against humanity, it was painfully unrealistic to accomplish this in Rome. The ICC does not render every human rights or humanitarian law violation a crime in its statute. The Caucus therefore accepted, as international law at the time required, that criminal abortion laws or their mere omission to provide abortion would not constitute a crime within the ICC’s jurisdiction. “Enforced pregnancy” thus became “forced pregnancy” with the following definition in article 7(2)(f): “the unlawful confinement, of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law.”

• Non-discrimination

Platform for Action

Strategic Objective I.2: Ensure equality and non-discrimination under the law and in practice

Rome Statute Article 21(3): The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender, as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.

The principle of non-discrimination nearly slipped through the cracks in the ICC. Some delegates felt that a statement of non-discrimination might be superfluous and could be easily presumed applicable in the ICC as it would be incorporated by the references to human rights treaties and conventions in the statute – all of which without exception contain explicit mandates of non-discrimination. The Women’s Caucus believed it would be a travesty if the treaty text creating the world’s first permanent criminal court contained no statement of non-discrimination on the basis of enumerated grounds, including gender. Proponents of including the principle of non-discrimination won on this issue and the above language of article 21(3) resulted.

This principle in the ICC has broad import for women. First, it requires that gender violence be investigated and prosecuted consistently and that the rules of procedure and evidence preclude gender discriminatory stereotypes. In addition, it requires that judges refer to international human rights treaties, and the prohibition of discrimination based on gender, in interpreting law. The body of law to which the Court may refer includes general principles of law derived from the national laws of legal systems of the world, “provided that those principles are not inconsistent with” the Statute and with international law and internationally recognized norms and standards.