While the Rome Statute contains numerous hard-fought and hard-won advances for women, it is clear our work to integrate gender and further Beijing objectives is far from over. Provisions in the Rome Statute require that a set of Rules of Procedure and Evidence be drafted as well as an Elements Annex, which will elaborate upon the crimes within the Court’s jurisdiction and serve as an interpretive guide. These tasks are scheduled to be completed by June 2000. As of the date of publication of this document, three Preparatory Commission meetings (PrepComs) were held in 1999 in New York to develop these instruments and two more are scheduled in 2000 – March 13-31 and June 12-30. In addition, the prepcoms are also addressing the crime of Aggression, left undefined in the Rome Statute.

The Women’s Caucus continues to maintain a presence at these proceedings. Stated broadly, our concerns have been to ensure the definitions of crimes of sexual violence reflect the reality of the crimes and the experience of women and that they are free of the discriminatory elements present in traditional definitions. In the Rules of Procedure and Evidence negotiations, we are concerned about ensuring a framework is developed that gives effect to the statute’s mandates around victim participation and protection and that evidence in cases of sexual violence is free of gender discriminatory attitudes about women and sex.

Our efforts have been geared toward trying to ensure that the gains made in Rome are not undermined or lost in the details of these subsequent meetings. This has become more of a challenge as the resistance to furthering the gender agenda has become progressively more overt on the part of some delegations with particularly bad gender records. The meetings have also been plagued with efforts by some states, particularly those who voted against the Rome Statute such as the U.S. and China, to weaken the Court’s jurisdiction. The Women’s Caucus, in addition to the larger NGO community, is having to remain constantly vigilant for the ways in which these States and others seek to achieve this.

Crimes in the ICC:

The Elements Annex is intended to guide the Court as to the nature and scope of the crimes within its jurisdiction. The Women’s Caucus has been determined to ensure that the definitions of crimes of sexual and gender violence are approached in a way that respects the experiences of women and the reality of the crimes. This is no small feat, as those who have worked on the local and national levels to engender law reform domestically will no doubt agree, in that it requires a drastic departure from the way the crimes have been traditionally defined in most settings.

Our task has been made all the more urgent since the most recent prepcom, November 29-December 17 1999, when eleven countries of the Arab League submitted a proposal relating to crimes against humanity declaring that all of the crimes of sexual violence as well as persecution and imprisonment should not be applied to areas of familial concern or of religious or cultural norms. While the proposal itself did not come as a complete surprise, the fact that several states were allowed to use the opportunity afforded by the introduction of this proposal in their attempts to weaken the Court’s capacity did come as a surprise.

The proposal by the 11 Arab countries was clearly contradictory to the spirit of the ICC as well as specific provisions in the Rome Statute, most notably article 21(3) – which says that the application of laws must be without discrimination on the basis of gender. It should not have been taken seriously at all. However, several states, such as the U.S. and others, used the proposal, and essentially the crimes of sexual and gender violence, as a bargaining chip in an effort to raise the threshhold for all of the crimes against humanity. This would make all of the crimes more difficult to prosecute.

Their maneuvering resulted in a draft text which contains a threat to the Preparatory Commission, and by extension NGO’s, in the form of a footnote to the crime of rape that if there is any further discussion on lowering the threshold, the issue of excluding crimes committed against women as a part of religious, cultural and family settings from the Court’s jurisdiction would be reopened. Using the Arab proposal in this way is nothing short of holding for ransom crimes against women in the ICC. It further implies some degree of validity to a proposal which is completely baseless and contrary to the ICC.

Rules of Procedure and Evidence:

Among our concerns in the negotiations for a set of rules of procedure and evidence are that: (1) in cases of sexual violence women should be protected against discriminatory attitudes about women and sex often present in traditional evidentiary procedures, (2) a framework is developed which gives effect to the statute’s scheme for participation and protection of victims and witnesses, and (3) that positive measures are put in place to ensure the statute’s guarantees of fair representation of men and women and gender experts be implemented as well as clear remedies and sanctions for sexual harassment.

The most contentious issues thus far have proven to be those arising from the proposed rule relating to evidence in cases of sexual violence. The Women’s Caucus believes that evidence of a victim’s consent in cases of sexual violence should be restricted as much as possible as it will not be relevant in the cases likely to come before the Court. Such “evidence” is used most often to harass and intimidate women and suggest that they did not resist to the utmost and has the effect of blaming the woman for the crime committed against her. This issue coincides with the debate on the definition of the crimes where we have advocated that crimes of sexual violence be understood and defined in a way that reflects the various forms that “force” or “coercion” can take so as to move away from the traditional understanding that only sexual violence that is committed by direct physical force is an offense. Rather, we have sought to have the definitions encompass the array of situations in which sexual violence is directed at or committed against women.

The Women’s Caucus has also advocated for a prohibition of all evidence of sexual conduct, including birth control methods and prior sexual relations, as it is one obvious example of the way in which biased and discriminatory attitudes about women and sex are called into play to discredit women. Both ad hoc tribunals prohibit outright any evidence of the victim’s prior sexual conduct and we are fighting for the same rule to be adopted in the ICC but have encountered enormous opposition on this point.

Thus far, the working group dealing with these matters has managed to hold off on a conclusive discussion. We anticipate that these issues will be dealt with more concretely at the March 13-31 prepcom. Because of the concerns outlined above, we believe the last two prepcoms i.e. March 13-31, 2000 and June 5-23, 2000 are crucial to ensure that the gains made in Rome with respect to integration of gender concerns are not lost. These two prepcoms coincide with two other events that the larger women’s rights constituency are involved in – the Commission on the Status of Women (CSW) sessions in March and the Beijing +5 review in June.