The result of the gender struggle in Rome is that ‘gender’ is worked into nearly all aspects of the Court – its substance, procedure and structure. Substantively, it sets the stage for ending impunity for the perpetrators of violence against women. Procedurally, the Rome Statute contains a blueprint for ensuring respect for women, survivors and victims in the process. Additionally, the Court is empowered to award reparations in a scheme that includes compensation, restitution and rehabilitation/assistance. Structurally, the Rome Statute contains provisions intended to ensure a presence of women on the Court, staff with expertise on violence against women and advisors on sexual and gender violence. The following are some of the ways in which the ICC is a fulfillment of some of the Platform’s strategic objectives.
Platform for Action
145(d). Reaffirm that rape in the conduct of armed conflict constitutes a war crime and under certain circumstances it constitutes a crime against humanity and an act of genocide as defined in the Convention on the Prevention and Punishment of the Crime of Genocide; take all measures required for the protection of women and children from such acts and strengthen mechanisms to investigate and punish all those responsible and bring the perpetrators to justice. This list of crimes also represents a major development in international law given the cryptic treatment such crimes were afforded in prior conventions. Provisions prohibiting rape and other sexual violence were vague, to say the least, and coupled with diminutive undervaluations of the crime as well as its victims. For instance, in the regulations attached to the 1907 Hague Convention on the Laws and Customs of war there is no specific mention of rape but the provision in article 46 calling for protection of “family honor” was understood as encompassing rape. The Fourth Geneva Convention Relating to the Protection of Civilian Persons in Time of War mandated that women were to be protected from any “attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault.” And, in the statute of the ICTY, rape was specifically listed as a crime against humanity within the tribunal’s jurisdiction but not among the grave breaches or other violations of the laws and customs of war. With respect to the ICC, there is support in the Statute, as well as in the current negotiations further defining the crimes within the Court’s jurisdiction, that sexual violence can also constitute other grave crimes such as torture and genocide and must be integrated into the prosecution of such crimes. Genocide. The Rome Statute adopts the definition of genocide accepted in the Genocide Convention.2 However, in the negotiations held since the Rome treaty conference to further elaborate upon the elements of offenses with the Court’s jurisdiction, there is currently an explicit statement in the commentary that rape and other sexual violence can constitute acts of genocide.
Platform for Action
Strategic Objective D.3. Eliminate trafficking in women and assist victims of violence due to prostitution and trafficking.
230. (n)Strengthen the implementation of all relevant human rights instruments in order to combat and eliminate, including through international cooperation, organized and other forms of trafficking in women and children, including trafficking for the purposes of sexual exploitation, pornography, prostitution and sex tourism, and provide legal and social services to the victims; this should include provisions for international cooperation to prosecute and punish those responsible for organized exploitation of women and children; 147(h). Apply international norms to ensure equal access and equal treatment of women and men in refugee determination procedures and the grating of asylum, including… bringing national immigration regulations into conformity with relevant international instruments, and consider recognizing as refugees those women whose claim to refugee status is based upon the well-founded fear of persecution for reasons enumerated in the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, including persecution through sexual violence or other gender-related persecution Persecution and Trafficking. In addition to the crimes of sexual and gender violence discussed above, persecution is included in the Rome Statute as a crime against humanity and specifically includes for the first time the recognition of gender as a basis for persecution.3 The Rome Statute also includes trafficking as a crime against humanity as among the crimes of enslavement.4 It is significant that these crimes can be committed by either official or private actors in both armed conflict and in the absence of war. As with all of the crimes of sexual and gender violence, this has important ramifications for national law reform in that States ratifying the ICC Statute necessarily recognize gender as a basis of persecution. These provisions open the door, for example, to prosecution of policies of sexual apartheid such as implemented by the Taliban in Afghanistan. Ratification of the ICC paves the way for recognition of gender persecution in domestic criminal laws as well as immigration policies, laws and regulations – which coincides with the calls for the recognition of such in the Platform.
124(d). …take measures to ensure the protection of women subjected to violence, access to just and effective remedies, including compensation and indemnification and healing of victims, and rehabilitation of perpetrators; Witness Participation and Protection. The Court has an over-arching responsibility to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses, taking into account all relevant factors, including age, gender, health and the nature of the crime.5 The Court may take appropriate protective measures in the course of trial, including in camera proceedings and allowing the presentation of evidence by electronic means.6 In addition, the Prosecutor is required to take these concerns into account in both the investigative and the trial stage. In so doing, the ICC statute recognizes that without the participation of victims, there can be no effective justice and that justice requires protective measures so long as they are not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Victim Witness Unit. The statute provides for the creation of a Victims and Witnesses Unit (VWU) within the Court's registry (not in the office of the Prosecutor in recognition that protection of witnesses should be independent of prosecutorial imperatives).7 The VWU will provide protective measures, security arrangements, counseling and other appropriate assistance for witnesses, victims and others at risk on account of their testimony. Furthermore, this Unit must include staff with expertise in trauma, including trauma related to crimes of sexual violence. The statute explicitly recognizes the right survivors to participate in the justice process, directly or through legal representatives, by presenting their views and concerns at all stages which affect their personal interests.8 This is a very important aspect of making justice responsive to the needs of survivors of atrocities. Reparations. The statute includes a provision enabling the Court to establish principles and, in certain cases, to award reparations to, or in respect of, victims, including restitution, compensation and rehabilitation, upon request or on its own motion. The breadth of reparations was also hard-fought, particularly the inclusion of rehabilitative measures. These include, for example, communal reconstruction and healing programs needed by survivors and educational efforts to embed these atrocities in the common history and memory of both victim and perpetrator communities.
Platform for Action Legal Expertise on Violence Against Women. The statute requires that, in the selection of judges, prosecutors and other staff, the need for legal expertise on violence against women or children must be taken into account.10 The Women’s Caucus insisted on this additional provision in recognition of the significance of crimes against women, the need for expertise at every level to ensure these crimes are effectively prosecuted and the fact that expertise in prosecution of gender crimes is not necessarily tied to biological sex and that both women and men can bring such expertise. Legal Advisors on Sexual and Gender Violence. The Prosecutor is required to appoint advisers with legal expertise on specific issues, including sexual and gender violence.11 This is an important mechanism for ensuring both that gender crimes are properly investigated and prosecuted and victims properly respected and protected. Since the prosecutor can, acting upon NGO information and with the approval of a judicial chamber, undertake investigations on her or his own motion, it is particularly important that such advisors are required to encourage women NGO’s and survivor communities to prepare cases for the Tribunal.
The result of the gender struggle in Rome is that ‘gender’ is worked into nearly all aspects of the Court – its substance, procedure and structure. Substantively, it sets the stage for ending impunity for the perpetrators of violence against women. Procedurally, the ICC Statute contains a blueprint for ensuring respect for women, survivors and victims in the process. Additionally, the Court is empowered to award reparations in a scheme that includes compensation, restitution and rehabilitation/assistance. Structurally, the ICC Statute contains provisions intended to ensure a presence of women on the Court, staff with expertise on violence against women and advisors on sexual and gender violence. The following are some of the ways in which the ICC is a fulfillment of some of the Platform’s strategic objectives.
Platform for Action
145(d). Reaffirm that rape in the conduct of armed conflict constitutes a war crime and under certain circumstances it constitutes a crime against humanity and an act of genocide as defined in the Convention on the Prevention and Punishment of the Crime of Genocide; take all measures required for the protection of women and children from such acts and strengthen mechanisms to investigate and punish all those responsible and bring the perpetrators to justice. Rape, Sexual Slavery, Enforced Prostitution, Forced Pregnancy, Enforced Sterilization and other Sexual Violence. The Rome Statute explicitly recognizes rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and other grave forms of sexual violence as war crimes in international and non-international armed conflict as well as crimes against humanity.1 The list is important in a number of ways: it vindicates the struggle of the "comfort women" and others to recognize that what has been deemed forced prostitution is properly characterized as sexual slavery; it incorporates reproductive as well as sexual violence; and, it encompasses common and non-physically invasive forms of sexual violence such as forced nudity and entertainment. This list of crimes also represents a major development in international law given the cryptic and moralistic treatment such crimes were afforded in prior conventions. Provisions prohibiting rape and other sexual violence were vague, to say the least, and coupled with diminutive undervaluations of the crime as well as its victims. For instance, in the regulations attached to the 1907 Hague Convention on the Laws and Customs of War there is no specific mention of rape but the provision in article 46 calling for protection of “family honor” was understood as encompassing rape. The Fourth Geneva Convention Relating to the Protection of Civilian Persons in Time of War mandated that women were to be protected from any “attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault.” And, in the statute of the ICTY, rape was specifically listed as a crime against humanity within the tribunal’s jurisdiction but was not explicitly included among the war crimes. With respect to the ICC, there is support in the Statute, as well as in the current negotiations further defining the crimes within the Court’s jurisdiction, that sexual violence can also constitute other grave crimes such as torture and genocide and must be integrated into the prosecution of such crimes. Genocide. The Rome Statute adopts the definition of genocide accepted in the Genocide Convention.2 However, in the negotiations held since the Rome treaty conference to further elaborate upon the elements of offenses with the Court’s jurisdiction, there is currently an explicit statement in the commentary that rape and other sexual violence can constitute acts of genocide.
Platform for Action
Strategic Objective D.3. Eliminate trafficking in women and assist victims of violence due to prostitution and trafficking.
This has important ramifications for national law reform in that States ratifying the Rome Statute will be required to recognize gender as a basis of persecution in their criminal laws as well as, by extension, immigration laws and regulations – which coincides with the calls for the recognition of such in the Platform. These provisions open the door, for example, to prosecution of policies of sexual apartheid such as implemented by the Taliban in Afghanistan.
124(d). …take measures to ensure the protection of women subjected to violence, access to just and effective remedies, including compensation and indemnification and healing of victims, and rehabilitation of perpetrators; Witness Participation and Protection.The Court has an over-arching responsibility to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses, taking into account all relevant factors, including age, gender, health and the nature of the crime.5 The Court may take appropriate protective measures in the course of trial, including in camera proceedings and allowing the presentation of evidence by electronic means.6 Victim Witness Unit. The statute provides for the creation of a Victims and Witnesses Unit (VWU) within the Court's registry (not in the office of the Prosecutor in recognition that protection of witnesses should be independent of prosecutorial imperatives).7 The VWU will provide protective measures, security arrangements, counseling and other appropriate assistance for witnesses, victims and others at risk on account of their testimony. Furthermore, this Unit must include staff with expertise in trauma, including trauma related to crimes of sexual violence. The statute explicitly recognizes the right survivors to participate in the justice process, directly or through legal representatives, by presenting their views and concerns at all stages which affect their personal interests.8 This is a very important aspect of making justice responsive to the needs of survivors of atrocities. Reparations. The statute includes a provision enabling the Court to establish principles and, in certain cases, to award reparations to, or in respect of, victims, including restitution, compensation and rehabilitation, upon request or on its own motion. The breadth of reparations was also hard-fought, particularly the inclusion of rehabilitative measures. These include, for example, communal reconstruction and healing programs needed by survivors and educational efforts to embed these atrocities in the common history and memory of both victim and perpetrator communities.
Platform for Action Legal Expertise on Violence Against Women. The statute requires that, in the selection of judges, prosecutors and other staff, the need for legal expertise on violence against women or children must be taken into account.10 The Women’s Caucus insisted on this additional provision in recognition of the significance of crimes against women, the need for expertise at every level to ensure these crimes are effectively prosecuted and the fact that expertise in prosecution of gender crimes is not necessarily tied to biological sex and that both women and men can bring such expertise. Legal Advisors on Sexual and Gender Violence. The Prosecutor is required to appoint advisers with legal expertise on specific issues, including sexual and gender violence.11 This is an important mechanism for ensuring both that gender crimes are properly investigated and prosecuted and victims properly respected and protected. Since the prosecutor can, acting upon NGO information and with the approval of a judicial chamber, undertake investigations on her or his own motion, it is particularly important that such advisors are required to encourage women NGO’s and survivor communities to prepare cases for the Tribunal. 1 ICC Statute, art. 8(2)(b)(xxii), 8(2)(e)(vi) and 7(1)(g). 2 ICC Statute article 6: “For purpose of this Statute, ‘genocide’ means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.” 3 art. 7(1)(h). 4 Id at articles 7(1)(c) and 7(2)(c). 5 art. 68 6 art. 69. 7 Id at art. 43. 8 Id at art. 68. See also, articles 15, 19, 54 and 75. 9 ICC Statute, art. 36(8)(a)(iii). 10 Id at articles 44(2) and 36(8). 11 Id at article 42(9).
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