With the prosecution of sexual and gender-based crimes (sgbc) gaining momentum, this year’s International Criminal Court Forum focuses on the ICC prosecutor’s mission to end impunity for sexual violence as crimes against humanity, war crimes and means of genocide.
ICC Forum tackles sexual and gender-based crimes
The ICC Forum is a legal journal and world-wide discussion forum on complex and important legal issues facing the ICC prosecutor. Run by the UCLA School of Law’s Human Rights Project in partnership with the ICC Office of the Prosecutor (OTP), the forum presents a specific question each year (last year focusing on ICC outreach and communications) and invites experts to enrich the open discussion.
This ICC Forum cycle (running from April 2016 through March 2017) will focus on sbgc given the ICC prosecutor’s commitment to take full advantage of the Rome Statute’s unprecedented sgbc provisions – ensuring that such crimes are no longer treated as “inevitable consequences of war and conflict” and that they do not remain “shrouded in a culture of silence and impunity.”
This year’s question:
“How can the Office of the Prosecutor (“OTP” or “Office”) of the International Criminal Court (“ICC” or the “Court”) secure better cooperation from those individuals and organisations on the ground responding to Sexual and Gender-based Violence, in order to facilitate its independent investigations and gain access to reliable evidence necessary to effectively investigate and prosecute such crimes?”
The forum provides a diverse collection of background materials on the topic as well as the possibility for the public to engage on the question and with experts on their responses. Its purpose is thus two-fold. The OTP can benefit from expertise on sgbc policy-making while non-experts can establish a greater understanding of the topic within the general public.
What are experts saying?
“[Sexual and gender-based violence] cases are among the most challenging to investigate because victims are typically isolated, often face enormous social barriers to coming forward, and can be particularly susceptible to intimidation,” says Alex Whiting, J.D., professor of practice at Harvard Law School.
“The Office of the Prosecutor (OTP) must…regularly rely on organizations on the ground that have access to witnesses, contacts, and other information that may be crucial to its investigations and/or prosecutions. The OTP’s reliance on these organizations is particularly pronounced in the context of situations or cases involving [sgbc], as these crimes are often under-reported in situations of conflict or mass violence, making evidence collection of such crimes particularly challenging for the Court,” adds Susana SáCouto, J.D., MALD, director of the War Crimes Research Office at American University, Washington College of Law.
“Our research in Kenya, Uganda, Liberia, Sierra Leone, and eastern Democratic Republic of Congo highlighted ways in which limited capacity and general collapse of infrastructure in conflict-affected areas contributed to a near universal failure to collect evidence of crimes of sexual violence contemporaneously,” argues Kim Thuy Seelinger, J.D., director of the Human Rights Center‘s Sexual Violence Program at UC Berkeley School of Law.
“We would…propose a different question as the first step towards redefining cooperation [for sgbc]: How can the OTP better orient its practices to meet first responders and those working with victims and survivors on equal terms,” note Christian De Vos, J.D., Ph.D.,and Betsy Apple, J.D., advocacy officer and advocacy director, respectively, at the Open Society Justice Initiative.
Recent developments in prosecuting sexual and gender-based crimes
2014: ICC prosecutor’s policy on sexual and gender-based crimes
In 2014 ICC Prosecutor Fatou Bensouda published a policy paper on sgbc. In it she addresses the need to end impunity for sexual violence, to pursue ‘new’ sex crimes such as forced marriage and forced pregnancy and to apply a special gender analysis at every stage of the OTP’s work.
The prosecutor has reiterated her intent to adhere to this policy and has indeed turned words into action, already charging several suspects with sgbc, including forced marriage as a distinct crime from sexual slavery in the soon-to-begin trial of Ugandan rebel commander Dominic Ongwen.
March 2016: First ICC sexual and gender-based crime conviction
The UN ad hoc tribunals, which have dealt with core international crimes committed in Rwanda and in the former Yugoslavia, criminalize rape as a crime against humanity. While certain judgments from the tribunals have further developed the international law understanding of sgbc, neither ad hoc system goes as far as the ICC’s founding treaty, the Rome Statute, which includes an expansive list of sgbc both as war crimes and crimes against humanity and in diverse situations of armed conflict.
June 2016: UN Security Council open debate on sexual violence during conflict
On 2 June 2016, the UN Security Council held an open debate on sexual violence in conflict. While no outcome document was adopted, the debate dedicated much-needed focus both to the use of sexual violence by terrorist and extremist organizations and to sex-trafficking during conflict, reflecting the organized and systematic nature of sgbc within many of the situations before the ICC.
Also discussed: survivor stigma; sexual violence against men; abuses related to gender and sexual orientation; allegations of sexual abuse by UN peacekeepers; and the need to hold non-state actors like rebel groups and criminal organizations accountable for such violations of international criminal law.
While foremost promoting effective domestic prosecution, many states addressed the need to refer cases of alleged sgbc to the ICC while several applauded the OTP’s efforts to put its 2014 policy on investigating and prosecuting sgbc into effect.