Introduction

During the March 2000 Preparatory Commission Meeting for the International Criminal Court (ICC) at UN Headquarters in New York, the Women’s Caucus for Gender Justice hosted a panel discussion related to issues of concern in the negotiations. This panel was the most recent in a series of panels hosted by the Women’s Caucus throughout the ICC Preparatory Commission meetings in an effort to bring to light the realities of women in situations similar to those the ICC will face and link these realities to the ongoing negotiations.

The Women’s Caucus has held panels on the meaning of gender as well as the effects of armed conflict on women. In the last three Preparatory Commission meetings (Prepcoms), the panels have focused directly on issues under debate at those meetings. During the July-August 1999 Prepcom, the Women’s Caucus brought together victims and witnesses from Rwanda as well as experts who have worked with both the Yugoslav and Rwandan tribunals to share the failures and achievements of those institutions for the benefit of those crafting rules and procedures in the ICC. In the November-December 1999 Prepcom, the Women’s Caucus brought together women to speak on the nature of crimes against women in different situations to illustrate how and why they amount to crimes against humanity. The panelists spoke on the situations of women in Afghanistan, Jordan, Guatemala and how they should be taken into account in the ICC. At the March 2000 Prepcom, the panel focused on issues relating to the threshold for crimes against humanity and the need for appropriate rules of procedure and evidence in cases of sexual violence.

Background

Since the adoption of the Rome Statute of the ICC in July 1998, the Preparatory Commission has been working to draft an Elements Annex, which will elaborate upon the crimes within the Court’s jurisdiction, and a set of Rules of Procedure and Evidence. These tasks are scheduled to be completed by June 2000. As with the advocacy prior to and at the Rome Treaty Conference, the Women’s Caucus has also maintained a presence at these subsequent negotiations to ensure that the gains made around gender in Rome are not lost in the details.

In negotiations on the Elements Annex, the Prepcom discussions have proceeded from Genocide (article 6) and War Crimes (article 8) to Crimes Against Humanity (article 7). The Women’s Caucus has been concerned with ensuring that the negotiations of crimes of sexual and gender violence avoid the discriminatory tendencies prevalent in national settings and take into account the advancements on the international level that more reflect the reality of such crimes. The Women’s Caucus has also insisted on the inclusion of a statement to the effect that acts of sexual and gender violence, while constituting crimes in and of themselves, must also be understood as constituting torture, enslavement, murder and genocide, etc., when the requisite elements of these crimes are met.

At the end of the November-December 1999 Prepcom, language was introduced into the negotiations on crimes against humanity – which can occur in situations of armed conflict as well as times of peace – that would require that the state or non-state entity “actively promote or encourage” the crimes. This language was introduced as a compromise to a proposal by 11 Arab countries which sought to exclude crimes of sexual and gender violence when committed within the family, or as a matter of religious or cultural concern. As a means of moving away from this outright discriminatory language, the negotiations yielded language of “actively promoting or encouraging” the crimes within the Court’s jurisdiction.

As many crimes against women are committed on a widespread or systematic basis with the tacit approval or toleration by states, many NGO’s were concerned that this language not only raises the threshold for all of the crimes against humanity in a manner inconsistent with international law but still has the effect of discrimination on the basis of gender.

In the negotiations on Rules of Procedure and Evidence, the Women’s Caucus has sought evidentiary rules which exclude the possibility of inquiries into the consent of the victim in cases of sexual violence as well as inquiries into the sexual conduct of the victim. Also, in these negotiations the working groups at the Prepcoms have been trying to develop provisions which give effect to the mandates around the participation and protection of victims and witnesses in the Rome Statute. The Women’s Caucus has identified as priority issues the need for legal representation for victim-witnesses at all stages of the trial as well as access to and confidentiality of psychiatric or trauma counseling.

The last Prepcom to deal with these matters will be held from 12-30 June 2000 at UN Headquarters in New York. It is critical that the stories of survivors and those working with them continue to influence the negotiations so that once the ICC is set up it will be well-positioned to do justice, having taken fully into account the lessons from past efforts at achieving justice in the international arena.

Summary

With the above concerns in mind, the Women’s Caucus hosted the panel that took place on March 14, 2000, where we asked a representative of the Office of the High Commissioner for Human Rights to analyze and discuss the development in the crimes against humanity negotiations in light of the work of the High Commissioner’s office in the field and in light of the international law on the issue. Two representatives from the International Criminal Tribunal for Rwanda spoke on this issue as well as the need for appropriate provisions in the rules of procedure and evidence. Also, a representative from a crisis center in Bosnia spoke on issues of concern to women victims and witnesses of sexual violence. Teresa Ulloa, a lawyer from Mexico who has worked on victim access and participation issues in the domestic court system, moderated. Pam Spees, Outreach Coordinator for the Women’s Caucus, served as rapporteur.

Madeleine Rees, of the Office of the High Commissioner for Human Rights, addressed the issue of the increased threshold for crimes against humanity in light of the non-derogation principle for jus cogens crimes. Jus cogens connotes a category of crimes for which there is no acceptable defense or excuse for their commission, meaning they are non-derogable. Examples of jus cogens crimes are slavery, torture and genocide. Ms. Rees analyzed the development in the ICC negotiations within the context of international human rights law and humanitarian law and found such language to be highly questionable and problematic in relationship to accepted norms.

Gabriela Mischkowski, a co-founder of Medica Mondiale, a crisis center founded in 1992 to assist the survivors of sexual violence and atrocities occurring in the Former Yugoslavia, discussed the negative impact participating in the criminal justice process can have on victims of sexual violence. This can take the form of re-traumatization and cultural and personal humiliation. For any justice process to be effective, it must rely on survivors and witnesses. According to Ms. Mischkowski, the process of justice itself must be more sensitive to and empowering of survivors and witnesses, especially survivors of sexual violence. In addition to contributing to a more profound sense of justice and faith in the justice process, a more gender sensitive and integrated approach would also have the effect of encouraging victims to come forward and participate in the justice process.

Francoise Ngendahayo, the Advisor on Gender Issues and Assistance to Victims at the International Criminal Tribunal for Rwanda, also addressed the needs of victims and witnesses in the justice process. She echoed many of the points made by Ms. Mischkowski and compared the similarities to the Rwanda experience. She also pointed out some of the differences to illustrate the need for flexibility within such tribunals to accommodate the needs and concerns of survivors in different cultural settings. Ms. Ngendahayo also stressed the need for counseling of survivors and assistance while recalling events that can re-produce the effects of trauma.

Statements of the Panelists

Madeleine Rees

I am here wearing two hats: one is as a representative from the Office of the High Commissioner for Human Rights and the other is in the capacity in which I work which is the head of the office for the High Commissioner in Bosnia. At first I will outline what the interest of our office is, because I am hoping that what I have to say is so obvious that there is no need to go into an in-depth legal analysis by our office. Our office really is concerned with the human rights dimensions of the ICC and the ICC statute. What we want is a statute that adequately reflects those human rights concerns and that ensures equal protection and, equally important, equal responsibility by those who sign up and ratify the statute. We want to make sure that the same standards apply to everyone: the victims of the various crimes which are outlined in the statute and those who are then called to account for the perpetration of those crimes. Secondly, I would like to go into the specific lessons that we should learn from Bosnia-Herzegovina and the way in which the ICTY has conducted prosecutions, and the effect that the implementation of the rules of procedure have had on women particularly, and their ability to come forward and demand redress.

Previously, I was a litigator in Britain and I remember fighting a case based on human rights. I used the decision of Toonen v Australia from the Human Rights Committee. The judge actually said to me, "Ms. Rees, are you really telling me that I have to take into account a decision regarding violations which took place in Tasmania?" I said yes and he ignored me. What he should have done was use that information to inform him as to how he should be interpreting British legislation. I use that as an anecdote to show how international human rights law can be misunderstood, even by those who in real life should know better. That is part of the complications that arise in terms of how international law is framed and in terms of how domestic legislation is informed by international human rights standards. Of critical importance is whether the ICC statute will itself be hard law, and therefore it is absolutely vital that each word is scrutinized to make sure that what we end up with is a document that provides us with protections for victims and also for those accused, both in terms of procedure and the legislation enacted itself. It is going to be hard law and although there will be scrutiny, what we are saying is that that scrutiny must be made in the light of international human rights standards, including all the treaties, the comments from the treaty bodies, the declarations from the world conferences and the jurisprudence of the ad hoc tribunals. This is a lot of information to take into account, but when we are talking about something as serious as the creation of what is an innovative international body with enormous jurisdiction, it really must be informed by these important and guiding principles.

Looking first at the treaty bodies, I am not going to give a lecture about how international law works. There are people in the room who are far better qualified to do that. When human rights treaties have been ratified by member states, they are binding. As a matter of law, the rights contained therein are no longer negotiable. That is the case in point for the ICCPR, the Convention on the Rights of the Child, etc. I would love to say that for CEDAW as well, but I am very conscious of the fact that many states, including those that have taken leading positions in negotiations at the ICC, have not ratified that treaty. This is a matter of some concern to the High Commissioner that those states have not ratified that Convention. As an activist from Bosnia I would have to say that it is absolutely outrageous that some of those states have not ratified CEDAW.

The other element of international law that is binding, there being a treaty or not, is jus cogens: those crimes that are so heinous that even in those countries that have not ratified the treaties, the crimes are banned by the need to eliminate those practices. A simple example is that of slavery. There is no derogation from the principle that thou shalt not have slavery in your country. The standards which are set by the human rights treaty bodies have over time evolved to be now that a country's compliance with human rights is determined according to whether or not they have respected, protected or fulfilled the obligations contained therein. So that is fairly clear in terms of what the human rights treaty bodies assess. So if you go to a human rights committee adjudicating the ICCPR, a country will be asked to submit its report. In that report it might, for example, make reference to criminal legislation which would then codify and examine criminal liability in that country. The treaty body will look at whether that criminal code accords with the principles set out; whether a person has a right to trial, whether there is a complete prohibition on torture, whether there is a right to representation, etc. That would be for the human rights committee to examine on the occasion of countries submitting their reports.

Looking at the standards set for "respect, protect, fulfil," when it comes to assessing whether or not there is liability for non-state actions, we stray into the area of due diligence. I will not go into that now, but it is referable to the ICC statute and we will come onto that later. What our office is most concerned with when it comes to the ICC statute is what is being introduced in the chapeau. From the discussions at the PrepCom in Rome a new element has been introduced, predicating Article 7 for the crimes against humanity. This new chapeau refers to the necessity of the state or the entity actively promoting or encouraging the crimes which are then delineated in Article 7 onwards. What does that mean in real life if you actively promote or encourage an offence to be committed? I don't know and until there are cases brought before a court, what does this mean? How would that work in terms of adjudicating crimes of jus cogens? How would we look atjus cogens in light of "actively promote or encourage”? In Article 7 we have slavery. I have just said that slavery is a non-derogable prohibition. Yet, we have in the chapeau this predicated idea that you must actively promote and encourage. So if slavery is being committed in a country and you want to prosecute it, are we now saying that you have to actively promote or encourage the practice of slavery? In which case we have done what we said we couldn’t do in the first place, which is derogate from our international human rights obligations. That would be something that should not be addressed in the negotiations. If you look at the crimes listed in Article 7 they are crimes of murder, extermination, enslavement, forced slavery, etc. Those are not crimes that can be negotiated and that would be the concern of the Office of the High Commissioner. We do not want states to go behind what is already adjudicated and decided upon in international law and which we say is internationally legally binding.

What would happen if we applied that standard to the already decided case from Rwanda and the former Yugoslavia? How many of those already sentenced would be actually have made it to the Hague facing prosecution had we applied that standard? When you look at the case of Kupreskic for example where the decision was that the state, government or entity must have at least tolerated the practice. There is a quantum leap to go from that sort of language to the language which is in the chapeau. If an act is simply tolerated by the government, as was the case in Akayesu where he did nothing, and that was enough to give him responsibility. If we then apply a different test, such as actively promote or encourage, are we going to end up with any of those people being prosecuted? And that is of grave concern. The other question is why was there consensus that the ICTY rules and procedures and statute thereof were acceptable, in which case nobody at the moment is screaming and shouting that those people thus far indicted and sentenced have been wrongly indicted and sentenced? In those cases they applied the tests more or less outlined in Kupreskic and more or less applied in Akayesu. When everybody is potentially going to be responsible for the acts of an individual within a state, we up the threshold to such an extent that we change what has come from the jurisprudence of the Rwandan tribunal, and from the ICTY. That is worrying because it looks very much like a political act, rather than one which has its origins in law.

I will not look at the specifics of Article 7 because they are going to be the subject of considerable negotiation by others who are going to spend the next three weeks looking at them. The one thing that must be said though is that all of them must reflect international law. Particularly we are concerned with the definition of "torture." There is no mention of the discrimination element which appeared in Article 1 of the Torture Convention.

Another area of concern is that there has been a proposal put forward by some of the Arab states that seeks to step back from the original intention of the statue which was to ensure that crimes committed in the private sphere would also be subject to international review through the criminal court. What seems to have happened is that a proposal has been drafted to make a waiver for those crimes committed in the family context. If that is the case, bearing in mind the idea that cultural practices would allow you to derogate from that article. The people most likely to be affected by that derogation are women and children. That would violate the principle of non-discrimination enshrined in international law. We say quite clearly that something which is non-derogable, such as a crime of violence in the family, when it is not in any way penalized by the state, can constitute jus cogens. If it does, you do not go back to it being predicated by actively promoted or encouraged. You cannot do that because you would put in an additional norm that does not exist under international law. You are banned by it. And this is something of fundamental importance to the negotiators. Too frequently we think about the niceties of international law and the political effects of what we are saying, instead of thinking what we should be doing, which is straight forward, practical implementation of international law. And I am particularly concerned about international human rights law and standards. You cannot derogate from standards which have been set and ratified for those crimes of jus cogens. Therefore you cannot negotiate a position on the basis of the derogation from those principles.

The concern is that there will be a disparate impact on women and children because of the way Article 7 is framed if those positions are adopted by the states. We would encourage open discussion, absolute scrutiny, etc., of the wording of those various elements of the crimes. And you cannot reopen those issues that have been decided.

Lessons learned from Bosnia: I was originally in Bosnia partly as a result of (Gabriela Mischkowski) having invited me to come over to talk about the rules and procedure of the ICTY and what could be done to encourage women to come forward. One of the major reasons, apart from the social and economic situation in which women find themselves in times of conflict, why women were not coming forward was the question, "Why should they?" If you have a woman who wants redress, she is looking for certain elements. One is whether there is a mechanism in place for there to be an effective prosecution of my complaint? Will I be subjected to the sort of cross-examination and interrogation which is going to make it very difficult for there to be a successful prosecution and will it involve the traumatization of me and those around me? Will there be adequate protection for me and my family? Do I want to look across the street and see the guy I have accused walking in the same direction as I am and intimidating and harassing me? Will there be any form of redress at the end? So why should a woman who has suffered violence during armed conflict go and ask the international community to condemn that violence and prosecute? If you look at that from the ICTY point of view, is it prosecutable? Yes it is. For example, rape is prosecutable under international law and under the statute of the tribunal. Because of the way prosecutions have been framed and because of the judgments that are now arising, we do now have rape identified as a crime against humanity, as torture rape, and as genocide. You can answer that question using the jurisprudence from the Rwandan tribunal and the ICTY. We could not necessarily say that would be the case when those tribunals started.

As to the second question, is that person going to be subjected to cross-examination and be retraumatized by the process? I think that about a year ago you could have answered probably yes. The rule 96 provisions provided a degree of protection against the accusation concerned, with limitations. Inroads are being made on that and the next part of the question can be answered by the decision in Furundzija. Although in that case the prosecution was successful and the crimes committed against the woman were prosecuted, what we had was jurisprudence that was very unhelpful towards the protection of the woman from retraumatization, and that was because of the inability to protect the medical records that were accumulated because she went and sought counseling for three days. The potential dangers of that are enormous. Are we saying that any woman who seeks counseling is automatically going to be a flawed witness, because of false memory syndrome that will distort their recollection? Are we saying that this will only apply to women? Because if you apply that rationale to anyone tortured, either they are going to be traumatized, in which case their evidence will be fundamentally flawed, or they are not traumatized, so that is evidence that no torture was perpetrated against them. So you cannot win. Either way you lose. The ICTY must address how you actually protect the rights of the individual not to have their medical records disclosed, except under exceptional circumstances, and there are mechanisms afoot to try and do that. But it must also inform the ICC in the deliberation over rules and procedures, because without any protection for that we are going to lose a category of witnesses. First without the requirement of consent and the protection against the disclosure of medical evidence we will lose 90 per cent of those who are likely to come forward. That is true at the moment because many of the counseling organizations in Bosnia are actually discouraging people who come to them who ask them that very question, "Should I go to the ICTY?" They are being told no, because they will be subjected to a particular type or cross-examination and retraumatization.

This helps none of us in terms of trying to establish some kind of international rule of law. This is a challenge that the ICC has because not only does it have the possibility of incorporating all the lessons learned from Rwanda and Bosnia and informing itself of all the human rights provisions that already exist, and including standards for the protection of the accused, but also protection for complainants. We must make sure that those things are put together in a document that is non-negotiable from our perspective. What I would like to add on top of that is, if a woman from Bosnia wanted to report that she had been raped and violated and crimes against her had been committed, if she asked whether she could get an effective prosecution, and the answer was yes, but what if the perpetrator is a peacekeeper? And that scenario does happen. Some of the crimes in Article 7 are actually being committed by peacekeepers in Bosnia, not necessarily knowingly, but in light of the amount of forced prostitution that is happening in Bosnia and the conditions of slavery women are held in. The market for those women does lie in part in those who claim to have immunity from prosecution. This is difficult because the nature of immunity is difficult. As a matter of principle, wearing a uniform does not make you immune from prosecution when you are committing one of those crimes delineated in the ICTY statute or the ICC statute. I would stress to delegates that there is nothing that any of the member states need to be concerned about in terms of liability of individual states, provided they get it right. If peacekeepers do what they are supposed to do and are part of the solution and not the problem, then we are not going to end up in the situation where the states will claim immunity.

We are actually trying to work on that in Bosnia. We are trying to encourage the notion that peacekeepers enjoy functional immunity and not full immunity in cases where they have been complicit in some form of crime of this nature. Failing that, we will be asking member states to ensure that they will be taken to the criminal court or the military court in the country of origin where they can be tried for alleged criminal activity.

In summing up, what I would like to suggest for the next few weeks is that we bear in mind several things that must form the basis of negotiations. International human rights standards must be reflected in the ICC statute as the concerns of the High Commissioner are there to protect the rights of those who are in need of protection. You cannot under any circumstances negotiate non-derogable rights. They must be included. Third, you cannot sacrifice human rights for perceived political expediency. That is something that those states that have ratified the various treaties and are bound by jus cogens cannot do. Fourth, show no fear. Those states that adhere to international treaties and that maintain human rights standards and embody them in their statutes, will not live in fear of prosecution.

Gabriela Mischkowski

While Madeleine was mainly looking at the international criminal law from the perspective of human rights treaties, I would like to look at this from the perspective of the injured and women survivors of violence. Let me tell you about Medica so you understand my background. Medica was founded in the winter of 1992/93 as a crisis center for war traumatized women in Bosnia in Zenitza. The approach is holistic in the sense that it is a center for medical treatment, as well as psychological, social and legal counseling. Now there is also a center in Kosovo and there is co-operation with women in Albania, and the whole center was set up from the beginning in co-operation with women in Bosnia. It has been growing over the years. One of our principles from the very beginning was to support women to regain self-determination and control which is what they lost when they were victimized. Self-empowerment is one of the basic principles. This is one of the ways we look at the ICTY, the ICTR and the ICC process now; to see if it is possible for women to be an active part and regain self-determination, or are they revictimized again in another way. We have been co-operating with the ICTY from the very beginning of course because many of the women who stayed at our center or received counseling were potential witnesses. So we have quite a bit of experience in this field. In fact we do not like to use the term "victim" as it is very common here. We talk about women survivors or as we do in German law, a term which is translated as "injured."