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Gender Justice and the ICC

Prof. Siobhán Mullally , Faculty of Law, University College Cork, s.mullally@ucc.ie Presentation to the Summer School on the International Criminal Court 2012 Irish Centre for Human Rights, NUI Galway. Gender Justice and the ICC. Gender and the ICC: Political Activism.

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Gender Justice and the ICC

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  1. Prof. SiobhánMullally, Faculty of Law, University College Cork, s.mullally@ucc.ie Presentation to the Summer School on the International Criminal Court 2012 Irish Centre for Human Rights, NUI Galway Gender Justice and the ICC

  2. Gender and the ICC: Political Activism Charlesworth: recognition of crimes of sexual violence – ‘the result of considerable work and lobbying by women’s organisations’. Goldstone: ‘Certainly if any campaign worked, this one worked in my case..’ (ICTY and ICTR)

  3. Gender and the ICC: Why? • "It is now more dangerous to be a woman than to be a soldier in modern conflict"- Maj. Gen. Patrick Cammaert, 2008, former UN Peacekeeping Operation Commander in DRC • UN Women: 250,000-500,000 women raped in Rwanda (1994) • 20,000-50,000 women raped in BiH in early 1990 -s • Sierra Leone 94 per cent of displaced households surveyed had experienced sexual assaults, including rape, torture and sexual slavery (Physicians for Human Rights, 2002) • Approx 250,000 Cambodian women were forced into marriage between 1975 and 1979. (UNIFEM) • DRC? ‘worst place on earth to be a woman’ (M Wallstrom) • Rape as a ‘weapon of war’ -- connotes the systematic use of rape and sexual violence in war

  4. Building on the Ad-Hoc Tribunals: Leading Cases • (Akayesu: 2 Sept 1998 – ICTR) • Defines rape as a physical invasion of a sexual nature, committed on a person under circumstances which are coercive. (para. 597) • Celibici ICTY (16 November 1998) • Accordingly, whenever rape and other forms of sexual violence meet the aforementioned criteria, then they shall constitute torture, in the same manner as any other acts that meet this criteria. • Akayesu, paras 505-509, 516 (rape as genocidal) (measures designed to prevent births)

  5. Ad-Hoc Tribunals: Jurisprudence • Furundzija ICTY (12 December 1998) • a momentum towards addressing, through legal process, the use of rape in the course of detention and interrogation as a means of torture and, therefore, as a violation of international law. • Kunarac (ICTY) • the absence of genuine and freely given consent or voluntary participation may be evidenced by the presence of the various factors • Kristic (ICTY) • ..given the patriarchal character of the Bosnian Muslim society in Srebrenica, the destruction of such a sizeable number of men would "inevitably result in the physical disappearance of the Bosnian Muslim population at Srebrenica."

  6. What role for the ICC ? • Seeking Truth • Promoting Accountability • Ending Impunity for GBV including sexual violence • Dignity – victims and witnesses • Historical record • Healing – through process of truth telling – (seeking recognition) • Expressive function of the criminal law – important in context of impunity for GBV

  7. ICC: Definitions of Crimes • Article 7 (Crimes against Humanity) • (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; • (h) Persecution…gender • 3. For the purpose of this Statute, it is understood that the term "gender" refers to the two sexes, male and female, within the context of society. The term "gender" does not indicate any meaning different from the above.

  8. ICC: Gender Crimes • Article 8 (War Crimes) • (xxi) Committing outrages upon personal dignity, in particular humiliating and degrading treatment; • (xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions;

  9. ICC: Rules of Procedure and Evidence • EVIDENCE IN SEXUAL VIOLENCE CASES • The court cannot impose a requirement of corroboration of a victim’s testimony. • · Evidence of a victim’s prior or subsequent sexual conduct is prohibited. • · Defense of consent is limited – consent cannot be inferred. • · In camera proceedings required to determine whether consent or sexual conduct evidence should be allowed. (Rules of Procedure and Evidence, Rules 63, 70-72) • SPECIAL MEASURES • · Special measures may be ordered to facilitate testimony of a traumatized victim or witness, child, an elderly person or a victim of sexual violence. • · The Court shall be vigilant in controlling the manner of questioning a witness or victim so as to avoid harassment or intimidation, paying particularly attention to attacks on victims of crimes of sexual violence. (Rules of Procedure and Evidence, Rule 88) • ·

  10. ICC – Gender representation • ..legal expertise on specific issues, including, but not limited to, sexual and gender violence and violence against children. • Women on the Court. The statute requires that the need for a "fair representation of female and male judges" be taken into account in the selection process. The same provision applies to the selection of staff in the Office of the Prosecutor and in the Registry. (Article 36(8)(a)(iii); Article 44(2) ) • 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. This is an important mechanism for ensuring both that gender crimes are properly investigated and prosecuted and victims properly respected and protected. (Article 42(9) ) (C.A. MacKinnon 2008)

  11. ICC Victims and Witnesses • Article 43.(6) (Victims and Witnesses Unit) • The Unit shall include staff with expertise in trauma, including trauma related to crimes of sexual violence.

  12. ICC- Cases • Lubanga – exclusion of GBV crimes • 14 other cases, 9 include GBV charges • GBV charges – in all 3 core international crimes (genocide in Bashir case) • Rape: (Katanga, Bemba, Bashir, Al Rahman, Kony, Muthaura, Mbarushimana and Gbago) • Inhuman treatment (Mbarushimana) • Rape as torture (Mbarushimana) • Sexual slavery (Katanga, Kony) • Outrages upon personal dignity (Al Rahman)

  13. Prosecutor v Lubanga • Charges – ‘shockingly narrow’? –(recruitment and use of child soldiers) • WIFGJ – Letter to Prosecutor • ‘grave concern’, GBV a ‘defining characteristic’ of conflict in the DRC – Persuasive evidence linking UPC to GBV crimes • Investigation criticised as limited in scope; ‘poorly directed’; lacking a ‘commitment to gather the relevant information and evidence’ on GBV • Consequences – difficult to charge GBV in other cases involving UPC members ; limiting effect on victim participation, (need for links to crimes charged) • Expressive function of criminal law

  14. Prosecutor v Lubanga • Confirmation of charges – PTC (general supervisory power’ -Amicus Curiae brief not allowed from WIFGJ – should have related to DRC situation • Legal Representatives of Victims • - request that Trial Chamber modify the legal characterisation of the facts (Regulation 55) - (Importance of victim participation in GBV cases) • Accountability gap on GBV – as learned from Ad-Hoc tribunals (charges not always included in initial indictment – Akayesu (intervention of J.Pillay) • Appeals Chamber – alteration to legal characterisation could not exceed facts described in charges (could not include crimes of sexual slavery eg)

  15. Prosecutor v Lubanga • UNICEF Paris Principles – (2007) Principles and Guidelines on Children Associated with Armed Forces or Armed Groups • ‘the use of girls as ‘wives’ or other forced sexual relations, actual forced marriage and the use of girls for domestic labour or other logistical support in armed conflict constitute acts of recruitment or use.’ • Dissenting Judgment: Odio Benito • ‘using children to participate actively in the hostilities’ should have been defined, and sexual violence dimension included • Judgment – Article 74 of Statute precluded taking account of evidence of sexual violence presented (not linked to charges brought) • Understanding of the Crime of child soldiering- -outdated, excludes gendered experiences, dominant male paradigm • Selective justice – efficiency ?

  16. Prosecutor v Bemba (CAR) • A range of GBV related charges • Rape as war crime; crime against humanity; torture (through rape) as a war crime and crime against humanity; outrages upon personal dignity • Cumulative charging strategy (Prosecutor) • Importance – expressive function of law (particularly in international criminal justice context) • PTC – declined to confirm charges of torture and outrages upon personal dignity (subsumed within rape charges) - • not materially distinct; burden upon the accused of multiple charges; delays

  17. Prosecutor v Bemba (CAR) • WIFGJ – Amicus brief – harms not subsumed by rape charge • 10 year old girl, publicly raped – (consent not possible, so force not necessary to address as part of the rape charge – torture through rape) • Witnessing of rape of family members – recognised in Furundzija case ICTY - Askin: distinctness of sexualised torture and sexual violence – ‘an important but subtle aspect of the case)

  18. Challenges : Questions • Buss: ‘Curious visibility of wartime rape’ • Need to complicate the ‘rape script’ • Sexual violence in armed conflict is not a singular uniform phenomenon ..different forms, multiple social, economic, and political contexts’. Gender intersects with other axes of oppression • Rape – other gendered harms? (less visible) • Consent? – if presumed – what consequences for women’s agency (Halley - Engle)

  19. Gender and ICC: Challenges • Buss: - Capturing truth? (ICTR) • A partial truth only • Convictions for rape and sexual violence low – why? • Hyper visibility of rape – un-visibility • Excluded (Hutu women; Tutsi and Hutu men subjected to sexual violence) • Rape as weapon of war – overlooks ‘violence and its wider links to gender and power’ (rather than women’s experiences of violence only) • Reparations – Remedies? • Collective or individual • Socio-economic needs / rights • Health care • Reproductive harms?

  20. From Res 1325 – Res 1820 • (2008) R1820 is a classic example of the dangerousness of feminist engagement with international law—on the one hand, gender is taken up as a totalizing dichotomy that operates so that women and girls are always in the most disadvantaged position, which invites and justifies protective responses, while on the other hand it presents the opportunity to actively dismantle gendered mythologies about sexual violence. (D .Otto ) • Subsequently: Res 1889 (2009) (returns to broader questions of political participation, and looks to socio-economic rights, sexual and reproductive health in post-conflict situations. • Expanding the agenda ..

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