GENDER JUSTICE IN THE ICC & Philippine Domestic Legislation

1. GENDER JUSTICE IN THE ICC & Philippine Domestic Legislation 17 July 2012, International Day of Justice Presented by Rebecca E. Lozada

2. The International Criminal Court (ICC) • Came into effect 1 July 2002 after 60 countries had ratified it • Presided over by 18 judges from various countries and legal traditions • Has seat at The Hague, Netherlands

3. ICC Jurisdiction • Subject matter (as defined under Rome Statute) • War crimes • Crimes against humanity • Genocide • Crime of aggression

4. ICC and Domestic Courts • Complementary to domestic courts • Will only take cognizance of cases in situations where a State is unable or unwilling to genuinely prosecute crimes within the ICC subject matter jurisdiction

5. Why ICC? • De-politicizes the enforcement of norms & places the campaign for human dignity squarely on legal footing. • Internationalizes the burden of prosecuting away from the reach of partisan national groups to international bodies beyond reach of the power of these groups. • Holds accountable both State & non-State actors.

6. SUBSTANTIVE 1. War crimes • rape • sexual slavery, • enforced prostitution • forced pregnancy • enforced sterilization • other sexual violence 2. Crimes against humanity • persecution on the ground of gender • trafficking in person as part of enslavement 3. Genocide

7. PROCEDURAL • Protection of the safety, physical and psychological well-being, dignity and privacy of victims and witnesses taking into account age, gender, health and nature of the crime. Prosecutor to take these concerns into account in the investigative and trial stages. • Creation of a Victims and Witnesses Unit within the ICC’s registry: protective measures, security arrangements, counseling and other appropriate assistance. • Note: “Victims” means natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court; Victims may include organizations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes. • Recognition of the right of victims-survivors and witnesses to participate in the justice process. • Provision for reparations, including restitution, compensation and rehabilitation

8. STRUCTURAL > Fair representation of female and male in the election of judges & selection of staff in all organs of the Court. > Legal expertise on VAW to be taken into account in the selection of judges, prosecutors and other staff. > Requirement for Prosecutor to appoint legal advisers on sexual and gender violence

9. The Trust Fund for Victims (TFV) forms an essential part of the Court’s innovative mandate towards victims and is an acknowledgment that justice for henious crimes cannot be met by retribution alone. The Trust Fund for Victims is part of a series of unprecedented steps to fully acknowledge the rights & needs of victims. The Rome Statute • > provides for victims’ active participation in the criminal justice process, • > enables them to claim reparations from perpetrators. • The independent Trust Fund complements these efforts. Its activities and projects will provide concrete means by which victims’ broader needs may be addressed.

10. Recruitment of ICC Staff MEN WOMEN Overall staff 54% 46% (698 including professional, general & elected officials, excluding judges) Overall professional posts (357 including elected officials, excluding judges) 52% 48% Judiciary Judges 42% 58% (11 of 18 judges are women) Overall professional posts 39% 61% (excluding judges) OTP overall professional posts 54% 46% Registry overall professional posts 52% 48% WIGJ Report Card data as of July 2011 ICC Staff:

11. R.A. No. 9851 : “Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity” signed into law on 11 December 2009 - defines and penalizes war crimes, genocide, and “other crimes against humanity.”- applicable to all individual perpetrators, whether state agents or non-state actors. - applies certain international criminal law principles of irrelevance of official capacity (for immunities), responsibility of superiors (i.e. command responsibility), unlawful superior orders, and non-prescription, among others.- institutes a form of universal of victims and witnesses, as well as reparations to the former. jurisdiction, albeit qualified.- providing for international standards for protection

12. - Declares that The State values the dignity of every human person and guarantees full respect for human rights, including the rights of indigenous cultural communities and other vulnerable groups, such as women and children; & the State shall ”ensure that the legal systems in place provide accessible and gender-sensitive avenues of redress for victims of armed conflict.” - Expresses applicability of international law, including of specific international treaties. - Providing for the designation of special courts, prosecutors and investigators, and their effective training in human rights, IHL and international criminal law.

13. The Philippines is the 1st Asian country to adopt a National Action Plan (NAP) on UN Security Council Resolutions 1325 and 1820 4 GOALS of the Philippine NAP on Women, Peace and Security: 1. Protection and Prevention: To ensure the protection and prevention of violations of women’s human rights in armed conflict and post conflict situations;2. Empowerment and Participation: To empower women and ensure their active and meaningful participation in areas of peace building, peacekeeping, conflict prevention, conflict resolution and post-conflict reconstruction;3. Promotion and Mainstreaming: To promote and maintain mainstream gender perspective in all aspects of conflict prevention, conflict resolution, and peace building, and;4. Capacity Development and Monitoring and Reporting: To institutionalize a monitoring and reporting system to monitor, evaluate and report in order to enhance accountability for the successful implementation of the NAP and achievement of its goals.

14. WAYS FORWARD > Educationon gender justice> implementation of Rome Statute after ratification, including RA 9851 rules and regulations> UN Res. 1325(strengthen the criminal justice system to address violence against women especially in the context of armed conflict, etc.)

15. Road to the International Criminal Court and Gender Integration in International Law From WIGJ • At end of WWII, Allied Powers insist on international military tribunals to prosecute war crimes by Nazis (Nuremberg) and Japanese military (Far East) • Statutes of Nuremberg and Far East tribunals fail to include rape • Nuremberg Judgment issued • Int’l community calls for an international criminal code & court [1946-1948: Widespread sexual violence in Europe and Japanese military’s widespread practice of sexual slavery of “comfort women” not addressed by IMTs] • UNDHR & Genocide Convention adopted • Convention calls for international tribunal • Int’l Law Commission drafts statute for an ICC but Cold War prevents serious efforts to create one

16. • Geneva Conventions adopted with references to sexual violence in terms of honor and dignity; not listed among grave breaches • Additional Protocols (I & II) to the Geneva Conventions adopted • End of Cold War clears the way for an int’l court again • Former “comfort woman” breaks nearly 50 years of silence about her sexual enslavement by Japanese military in WWII, sparking int’l movement seeking accountability and reparations

17. • (1993) Vienna World Conference on Human Rights recognizes need to address grave violations of women’s human rights as part of UN agenda • Security Council establishes ICTY & ICTR, providing more impetus to develop a permanent court 1995 • GA sets up Preparatory Committee to prepare draft text of a treaty to establish an ICC • 4th World Conference on Women in Beijing adopts Platform for Action affirming rape as a war crime 1998 • ICTR issues Akayesu judgment finding rape a form of genocide; ICTY follows with Celebici & Furundzija judgments finding rape a form of torture

18. 1998 • July 17, 1998: “Rome Statute” of the ICC adopted by a vote of 120-7. Codifies rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, sexual violence as war crimes and crimes against humanity for the first time in history. Maraming Salamat po!