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Prosecution of gender-based violence under international Law

Prosecution of gender-based violence under international Law. From Nuremberg to the ICC. International Military Tribunal (IMT) based on the Charter adopted in August 1945 by USA, France, USSR and England; Crimes against peace, war crimes and Crimes against humanity;

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Prosecution of gender-based violence under international Law

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  1. Prosecution of gender-based violence under international Law

  2. From Nuremberg to the ICC • International Military Tribunal (IMT) • based on the Charter adopted in August 1945 by USA, France, USSR and England; • Crimes against peace, war crimes and Crimes against humanity; • Tried 21 accused leaders between November 1945 and October 1946; • No Crimes of sexual violence in the statute; • No female prosecutor or judge;

  3. 12 major trials • Based on the Control Council 10 Law (CCL10) dated 20 December 1945; • Against professional groups such as jurists doctors, business leaders, personnel of concentration camps; • Rape is listed under Crimes against humanity;

  4. International Military Tribunal for Far East (IMTFE) • Based on the executive decree of the Supreme Commander of the allied forces, General Mac Arthur; • Crimes against peace, war crimes and crimes against humanity; • No crimes of sexual violence in the Charter, but in a few cases rape was added in the indictment as war crime under inhuman or ill treatment, and failure to respect family honor; • No female judge or prosecutor;

  5. International AD-HOC Tribunals: ICTY/ITCR • International Criminal Court for the former Yugoslavia (ICTY), based on UN Security Council Resolution 827, May 1993, located in The Hague, Netherlands; • Jurisdiction over genocide, war crimes and crimes against humanity in former Yugoslavia since 1991; • Rape is listed as Crime against humanity;

  6. ICTY jurisprudence related to gender crimes • Recognizing sexual violence against females and males; • Prosecuting rape as a crime against humanity and as a war crime (grave breach of the Geneva Convention); • Recognizing by-standers and failing to punish or prevent sexual violence;

  7. International Criminal Court for Rwanda (ICTR) • Established by UN Security Council Resolution 935,November 1994, based in Arusha, Tanzania; • Jurisdiction over genocide, war crimes and crimes against humanity; • Rape is included into the statute as a Crime against Humanity and as a war crime, violation of the common article 3 of the Geneva conventions;

  8. ICTR Jurisprudence related to gender crimes • First Genocide judgment (Akayesu case) September 1998; rape acknowledged as means of genocide; • Other forms of sexual violence acknowledged such as forced nudity; • Determining that sexual violence is used as means to inflict serious bodily and mental harm on extended group, such as family and community;

  9. Internationalized Court Special Court for Sierra Leone (SCSL) • Established through Agreement between the UN and Sierra Leone, January 2002; located in Freetown, Sierra Leone; • Jurisdiction over the most responsible for serious violations of international humanitarian law and Sierra Leone law, committed in the territory of Sierra Leone since 30 November 1996; • Power to prosecute war crimes and crimes against humanity and certain domestic crimes; • Domestic and international judges, prosecutors and registry;

  10. SCSL Jurisprudence related to gender crimes • Statute included rape, sexual enslavement, forced prostitution, forced pregnancy and any other form of sexual violence of a similar gravity. • 3 of 4 cases addressed gender crimes of rape and sexual slavery. • For the first time forced marriage was acknowledged under crimes against humanity as “another inhumane act”.

  11. International Criminal Court (ICC) • First permanent criminal Court, based on the Rome Statute (treaty), became operational on 1 July 2002, currently 110 states parties; based in The Hague, Netherlands; • ICC is a complementary Court that has only jurisdiction if national Courts are not able or willing to prosecute; • Jurisdiction over genocide, war crimes and crimes against humanity, and soon aggression;

  12. For the first time more specific sexual crimes such as rape, sexual slavery, forced pregnancy, enforced prostitution, enforced sterilization, trafficking in women and children including gender persecution and other forms of sexual violence of comparable gravity are listed. • Code of procedure and evidence set a precedent in how to deal with cases of sexual violence related to consent, prior or subsequent conduct of the victim and credibility.

  13. Extraordinary Chambers in the Courts of Cambodia (ECCC) • Established through Agreement between UN and the Royal Government of Cambodia. • Trying senior leaders and most responsible of Democratic Kampuchea from17 April 1975 until 6 January 1979. • All offices of the Court are composed by international and national staff.

  14. Prosecution of gender- based violence before the ECCC • The Agreement (2003) refers to the Rome Statute of the ICC for the definition of crimes against humanity. • The implementing ECCC Law (2004) includes only rape as sexual crime under Crimes against humanity and is similar to the statute of the ICTR and is a step backwards.

  15. Prosecution of gender- based violence before the ECCC • Since the beginning of the investigations gender-based violence was ignored; • Hostile environment for victims of sexual violence. No female prosecutor, no female investigators and no female interpreters are employed. Training of staff on gender sensitive not conducted; • Civil Parties introduced forced marriage as a crime and achieved country wide investigations; • Other sexual crimes were investigated and victims came forward to tell their story.

  16. Conclusion • Successful prosecution of gender related crimes needs: • Well gender-sensitive trained female and male staff; • Women in decision making positions; • Appropriate treatment and protection of victims of sexual violence related to the specificity of the crime; Developing a strategy to identify victims and create a victim friendly environment; • Adopting guidelines for all offices how to deal with victims of sexual violence such as women, men and children;

  17. Trainings on background of the sexual crimes and special crimes such as forced marriage; • Acceptance that under coercive circumstances genuine consent of the victims can not be given; • Adequate investigations, clear indictments and sufficient evidence presented at trial guarantee that sexual violence in all of its forms is properly addressed.

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