Navigation

Investigation and Prosecution of Sexual and Gender-Based Violence by the International Criminal Court: Mandate, Good Policy or Both?

The following remarks were presented by Susana SáCouto, Director of the War Crimes Research Office, on February 1, 2012, at a conference hosted by the the War Crimes Research Office and the Women and International Law Program at American University entitled “Addressing Sexual and Gender-Based Violence in Conflict and Post-Conflict Settings: National and International Strategies.”

I. Introduction

The International Criminal Court (ICC) was established to end impunity for serious international crimes around the world.[1] Yet the Court’s broad mandate, jurisdiction over an increasing number of territories – there are now 120 States Parties to the Rome Statute that established the Court[2] – and limited resources[3] means that the Court must be selective in the situations it chooses to investigate and the cases it chooses to prosecute. Since the Rome Statute came into force more than a decade ago, the Court has formally initiated investigations in seven different situations, [4] commenced fourteen cases against twenty-five accused and confirmed charges in six cases against ten accused.[5] Gender-based crimes have been investigated in six of the seven situations now before the Court, namely: Uganda, the Democratic Republic of Congo (DRC), the Central African Republic (CAR), Darfur, Kenya and the Ivory Coast.[6] In addition, gender-based charges have been brought in eight of the fourteen cases currently before the Court.[7] In light of the historic failure to prosecute acts of sexual and gender-based violence committed in the context of conflict, mass violence or repression until relatively recently, [8] these statistics appear to indicate significant progress in the effort to seek accountability for such crimes.

Interestingly, however, progress in this area has prompted some commentators to question whether selecting sexual and gender-based violence crimes for investigation and prosecution is appropriate. The question is premised on the notion that “[m]urder is widely considered more grave than sex crimes,”[9] and that prosecuting sexual and gender-based violence in the context of a tribunal with limited resources, such as the ICC, “often requires leaving other serious crimes unpunished, including crimes that resulted in death.”[10] In response, various theoretical and practical justifications have been proposed in support of the “thematic prosecution”[11] of sexual and gender-based crimes.[12] Setting aside the question of whether the history of recent international criminal prosecutions actually supports the existence of such thematic prosecutions,[13] it is worth noting that few of these justifications focus on the provisions of the Rome Statute itself. Importantly, several provisions are directly relevant to the question of what factors the Court, particularly its Office of the Prosecutor (OTP), must consider in making selection decisions. For instance, Article 54(1) of the Rome Statute, requires that in exercising his or her duties, the Prosecutor must consider “the nature of the crime, in particular where it involves sexual violence, [or] gender violence . . .” [14] Moreover, Article 21(3) of the Statute requires that the application and interpretation of the sources of law listed in that article – including the Court’s governing documents such as the Rome Statute, Elements of Crimes and Rules of Procedure and Evidence – “be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender . . .”[15] The aim of this essay is to explore the impact of these provisions on the question of whether it is appropriate for the Court – and in particular the OTP – to prioritize investigation and prosecution of sexual and gender-based crimes. It concludes that the Rome Statute and its drafting history suggest that the Court should not only prioritize sexual and gender-based crimes, but also ensure that allegations regarding such crimes feature prominently in the Prosecutor’s investigation and charging strategy from the outset.

II. ICC Selection Decisions – Legal Requirements

The Rome Statute creates three trigger mechanisms for the initiation of an investigation: 1) Security Council referral under Chapter VII of the UN Charter,[16] 2) State Party referral,[17] and 3)  propio motu action by the Prosecutor based on information received – including from individuals, groups, States, intergovernmental or nongovernmental organizations – that crimes within the jurisdiction of the Court have been committed. [18] Regardless of the triggering mechanism, the Prosecutor must assess whether there is a “reasonable basis to proceed” before starting an investigation, which requires that he or she evaluate whether: 1) the court has jurisdiction to hear the case; 2) the case is admissible; and 3) taking into account factors such as the gravity of the crimes and interests of victims, investigation and/or prosecution of the crimes would nevertheless not be “in the interests of justice.”[19]

Commentators argue that if the Prosecutor finds that there is a reasonable basis to proceed, the Rome Statute grants the Prosecutor broad discretion with respect to the selection of which situations to investigate and/or which cases to prosecute. As one commentator has noted, “[n]otwithstanding [the] statutory provisions mandating judicial oversight and/or providing for institutional accountability for prosecutorial decision-making, and in spite of what may have been intended by many states at Rome, the Statute imposes relatively few practical restraints on the exercise of prosecutorial discretion with respect to the selection of situations (beyond the three trigger mechanisms), cases and accused.”[20] Notably, one of the OTP’s own publications indicates that once jurisdiction, admissibility and interests of justice are assessed, “[t]here are no other statutory criteria” for determining whether a situation warrants investigation.[21] Thus, although the OTP has indicated that in selecting which cases to prosecute it will “pay particular attention to . . . sexual and gender-based crimes,”[22] it appears that it does so as a matter of policy rather than because it views this as mandated by the Rome Statute.

While the Prosecutor does indeed have a fair amount of discretion in carrying out his or her duties under the Rome Statute, other statutory provisions and the Statute’s travaux préparatoires suggest that the Prosecutor’s discretion is not quite as unfettered as some would suggest. Indeed, several provisions in the Rome Statute indicate that the Statute’s drafters intended sexual and gender-based crimes to be given specific attention during the investigation of potential cases before the Court. For instance, as mentioned earlier, Article 54(1)(b) requires that, in ensuring the “effective investigation and prosecution of crimes within the jurisdiction of the Court,” the Prosecutor must “take into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children.”[23]   The  travaux préparatoires suggest that this provision was specifically included “to ensure that gender-based crimes [we]re not sidelined or ignored.”[24] As one observer noted,

The experience of the [ad hoc International Criminal Tribunals for the former Yugoslavia and Rwanda], as well as the post-Second World War prosecutions under control Council Law No. 10, suggested that [the effective investigation, prosecution, and trial by the Court of sexual and gender violence crimes] would not necessarily flow automatically from the inclusion of crimes of sexual and gender violence in the Statute. A number of delegations at the [Preparatory Commission] and at the Diplomatic Conference therefore attached importance to the inclusion of . . . special structural mechanisms . . . [that would ensure the effective investigation and prosecution of such crimes].[25]

Indeed, in addition to Article 54(1)(b), the Rome Statute also provides that States Parties, which are responsible for nominating and electing the Court’s judges, must “take into account the need to include judges with legal expertise on specific issues, including, but not limited to, violence against women or children.”[26] Similarly, the Prosecutor and the Registrar are to consider the importance of legal expertise on violence against women in hiring staff within their respective organs.[27] At the same time, the Prosecutor must appoint “advisers with legal expertise on specific issues, including . . . sexual and gender violence,”[28] while the Victims and Witnesses Unit must include staff with expertise in “trauma related to crimes of sexual violence.”[29] Together with the broad range of sexual and gender-based crimes enumerated in the Rome Statute,[30] these provisions suggest that the drafters wanted to ensure that sexual and gender-based crimes would be effectively investigated and prosecuted by the Court.

         Importantly, this view is supported by Article 21(3) of the Rome Statute, which as noted above, requires the application and interpretation of the sources of law listed in Article 21 – including the Court’s governing documents – to “be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender . . .”[31] Although this was one of the most contentious provisions during the negotiations at Rome,[32] the controversy was focused primarily on how to define the term gender rather than whether a provision on non-discrimination should be included in the Statute.[33] Indeed, many delegations “felt strongly that it was important to reaffirm the international community’s commitment to the principle of non-discrimination in the context of the international criminal court.”[34] Moreover, while there was debate over how to define gender, the idea that the application and interpretation of the statute should be consistent with the prohibition against gender discrimination was in line with other developments on gender issues occurring in other United Nations fora during and in the years preceding the adoption of the Rome Statute. For instance, at the World Conference on Human Rights, held in Vienna in 1993, states underscored the importance of eliminating “gender bias in the administration of justice,” stressing that “[v]iolations of the human rights of women in situations of armed conflict are violations of the fundamental principles of international human rights and humanitarian law [which] . . . require a particularly effective response.” [35] Similarly, at the Fourth World Conference on Women, held in Beijing two years later, states agreed that “[i]n addressing armed or other conflicts, an active and visible policy of mainstreaming a gender perspective into all policies and programmes should be promoted so that before decisions are taken an analysis is made of the effects on women and men, respectively.”[36] More specifically, states convening in Beijing undertook to,  inter alia,

(d) Ensure that [international criminal] bodies are able to address gender issues properly by providing appropriate training to prosecutors and judges and other officials in handling cases involving rape, forced pregnancy in situations of armed conflict, indecent assault and other forms of violence against women in armed conflicts, including terrorism, and integrate a gender perspective into their work. . . [37]

Furthermore, in 1997, the United Nations Commission on Human Rights called on states participating in the drafting of the ICC statute “to give full consideration to integrating a gender perspective”[38] into the statute, noting that violations of the human rights of women in situations of armed conflict “call[] for a particularly effective response.”[39] Thus, although the draft ICC statute prepared by the International Law Commission in 1994 [40] did not specifically reference gender issues, by the time of the Rome Conference “the momentum had built to the point where most delegations accepted the necessity of including certain gender references in the statute…” [41] Indeed, at Rome, a number of delegations specifically expressed “the importance of reaffirming in the Statute the prohibition against gender discrimination.”[42] In the end, despite the debate over the definition of gender, the delegations settled on language making clear that the sources of law in Article 21 must be applied and interpreted consistently with the prohibition against adverse gender discrimination.

III.Application of No-Adverse-Distinction Requirement to Selection Decisions

The question, of course, is how the no-adverse-distinction requirement in Article 21(3) should be interpreted and applied in practice, in particular to the question of what crimes, suspects and cases should be selected for investigation and prosecution. A threshold question concerns the definition of the term gender. As discussed above, the meaning of the term remained controversial throughout the negotiations of the Rome Statute. In particular, some delegations were concerned that the term might be understood to include sexual orientation and proposed replacing the term “gender” with “sex,” arguing that the latter term could be narrowly defined with reference to the biological differences between men and women.[43] On the other hand, some delegations felt strongly that the term should encompass not only biological but also sociological aspects, such that it could capture the “socially constructed roles of men and women.”[44] Eventually, a compromise was reached by which the term was defined as referring “to the two sexes, male and female, within the context of society,” with a second sentence noting that the “term ‘gender’ does not indicate any meaning different from the above.” [45] Although, as commentators have suggested, the definition adopted in the Rome Statute “effectively leaves the term open for the . . . court to interpret and apply,”[46] at a minimum it appears that the term bars an interpretation or application of the Court’s governing documents that would adversely discriminate either on the basis of sex or on the basis of the socially constructed roles of men and women.[47]

The other question raised by Article 21(3) is what is meant by the phrase “no adverse distinction.” There is little in either the travaux préparatoires or commentary published since the establishment of the ICC that might provide guidance in interpreting this phrase.[48] Nevertheless, similar language appears in various international humanitarian law (IHL) instruments dealing with the protection of victims in armed conflict and human rights instruments addressing discrimination against women.[49] For instance, the 1949 Geneva Conventions and their 1977 Additional Protocols state that, as a general matter, treatment of persons to which the conventions apply must be “without any adverse distinction” based on sex.[50] Additionally, other provisions in the Conventions explicitly state that women should benefit from “treatment as favourable as that granted to men.”[51] While these provisions evidence a clear commitment to the principle of nondiscrimination, the Geneva Conventions also make clear “that women have specific needs and that a ‘blanket’ application of protection is not adequate.”[52] For example, a number of articles provide specific protections for pregnant women and mothers of young children,[53] female civilian internees[54] and female prisoners of war.[55] As these provisions suggest, IHL prohibits discrimination against women when it results in unfavorable treatment. Conversely, different treatment on the basis of sex is permitted when the impact on women is favorable.[56] Notably, the Committee tasked with monitoring states’ compliance with the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW)[57] has adopted a similar view of the principle of nondiscrimination. As the Committee has noted, “a purely formal legal or programmatic approach is not sufficient to achieve women’s de facto equality with men, which the Committee interprets as substantive equality… It is not enough to guarantee women treatment that is identical to that of men. Rather, biological as well as socially and culturally constructed differences between women and men must be taken into account. Under certain circumstances, non-identical treatment of women and men will be required in order to address such differences.”[58] More specifically, with regard to socially and culturally constructed differences, the Convention allows “temporary special measures”[59] to be adopted by states in order “to accelerate the improvement of the position of women to achieve their de facto or substantive equality with men, and to effect the structural, social and cultural changes necessary to correct past and current forms and effects of discrimination against women…”[60]

Consistency with this understanding of the nondiscrimination principle in the ICC context would seem to require, at a minimum, a detailed inquiry into how situations under investigation by the Court have affected victims of sexual and gender-based violence. Moreover, the CEDAW Committee’s emphasis on special measures to “correct past and current forms and effects of discrimination” suggests that, in conducting this inquiry, the ICC should take into account the fact that victims of sexual and gender-based violence historically have been the subject of multiple layers of discrimination. As the CEDAW Committee has noted, sexual and gender-based violence is often itself a product of discrimination.[61] Indeed,

[t]raditional attitudes by which women are regarded as subordinate to men or as having stereotyped roles perpetuate widespread practices involving violence or coercion, such as family violence and abuse, forced marriage, dowry deaths, acid attacks and female circumcision. Such prejudices and practices may justify gender-based violence as a form of protection or control of women. The effect of such violence on the physical and mental integrity of women is to deprive them the equal enjoyment, exercise and knowledge of human rights and fundamental freedoms.[62]

Moreover, as mentioned earlier, before the mid-1990s sexual and gender-based crimes in the context of conflict, mass violence or repression were rarely prosecuted.[63] Rather, sexual violence offences, particularly against women and girls, were often ignored, seen as an inevitable by-product of war, or considered less important than other forms of violence.[64] Thus, the discrimination inherent in sexual and gender-based violence was often compounded by the discriminatory disregard of those acts by those tasked with prosecuting serious crimes. In light of this history, applying the non-discrimination principle to the question of which crimes should be selected for investigation and prosecution suggests that a careful assessment of the gender-specific impacts of the situations under review by the Court should be conducted before selection decisions are made. Importantly, the results of this assessment might be relevant both to the Prosecutor’s analysis of whether there is a reasonable basis to proceed with an investigation – including in particular whether the case is of sufficient gravity to justify further action by the court, as required by Article 53(1)(b)[65] – as well to how the Prosecutor exercises his or her discretion regarding which crimes and accused to prosecute once he or she has determined that a reasonable basis to proceed exists.  

In this regard, it is worth noting that while significant progress has been made, particularly in the last two decades, in the effort to seek accountability for sexual and gender-based violence, the international tribunals continue to be critiqued for inadequately investigating and prosecuting such crimes even where evidence of such crimes arguably warrants investigation, if not prosecution.[66] For instance, despite significant evidence relating to crimes of sexual violence committed by the Civilian Defence Defense Force (CDF) – a pro government militia that fought during Sierra Leone’s eleven year civil war – the Office of the Prosecutor of the Special Court for Sierra Leone omitted any allegations with respect to these crimes in its initial indictment against the three leaders of the CDF.[67] Although it later moved to amend the indictment to include such crimes, the Court refused to allow the amendment.[68] The prosecution subsequently tried to introduce evidence of sexual violence to support the charges of inhumane acts as a crime against humanity and/or violence to life, health and physical or mental well-being of persons as a war crime, which had been included in the original indictment.[69] Yet the Trial Chamber rejected the request[70] and, as a result, evidence of sexual violence was completely excluded from the case. Indeed, even though seven women took the stand to testify about acts of violence, none of them was permitted to speak about the acts of sexual or gender based violence they had endured, arguably “the principal manner in which they were victimized during the Sierra Leonean conflict.” [71] As two researchers who interviewed the witnesses noted, the “ruling which determined that sexual violence should be rendered inadmissible had a kind of ripple effect whereby wider and wider circles of the women’s experience had to be eliminated from their testimony.”[72]

Unfortunately, this is not an isolated example. According to a detailed analysis of trends in the prosecution of sexual violence in the International Criminal Tribunal for Rwanda from November 1995 through November 2002, for instance, the number of indictments of sexual violence leveled-off between 1996 and 2001, and then decreased sharply through the end of 2002.[73] Indeed, despite evidence showing the widespread occurrence of rape and sexual violence in Rwanda during the genocide, as of May 2004, only 30 percent of adjudicated cases contained rape charges.[74] In two of the later cases in which crimes of sexual violence were charged, the Prosecution later sought to withdraw the charges due to insufficient evidence. [75]

Similar problems have occurred at the ICC. For instance, in the case of Thomas Lubanga Dyilo, the first person tried by the ICC, human rights groups criticized the OTP for failing to include sexual violence charges in the original indictment against Lubanga, despite allegations that girls had been kidnapped into Lubanga’s militia and were often raped and/or kept as sex slaves.[76] Notwithstanding such criticism, the Prosecutor did not seek an amendment of the indictment against Lubanga to include gender-based crimes. [77] Moreover, in the case against militia leaders Germain Katanga and Mathieu Ngudjolo, the Prosecutor dropped charges of sexual slavery as both a war crime and a crime against humanity after a Pre-Trial Chamber judge excluded the statements of witnesses supporting those charges on the grounds that the witnesses were not adequately protected.[78] The situation was resolved after the witnesses were eventually accepted into the Court’s Witness Protection Programme,[79] and the Prosecution amended its charges not only to reinstate those relating to sexual slavery but also to include allegations of rape as a war crime and a crime against humanity. [80] However, the tug-of-war over these victims’ statements indicates the vulnerability of sexual violence charges if the supporting evidence is limited and subject to challenge. Notably, a December 2011 report by the Women’s Initiative for Gender Justice analyzing the treatment of gender-based crimes by the ICC indicates that:

these charges are the most vulnerable category of crimes, in that they tend to be either omitted from filings or fail to reach the trial phase of the proceedings. This vulnerability is based on a number of factors involving both the Office of the Prosecutor and the Pre-Trial Chambers, including failures at the investigation phase, insufficient evidence, incorrect characterisation of acts or restrictive interpretations of the definition of some gender-based crimes. In some instances, gender-based crimes have not always been fully investigated by the Office of the Prosecutor, or have not been included by the Prosecutor in his request for an arrest warrant or summons to appear, even in situations where such information was provided to the Prosecutor by NGOs . . . Charges for gender-based crimes have also not been included or have been minimally included in Situations in which the Prosecutor’s request to open an investigation contains significant amounts of information showing that such crimes were committed.[81]

In sum, sexual and gender-based crimes continue to be left out of the prosecution’s investigation and/or case against the accused even where evidence of such crimes indicates that they merit further inquiry. In light of the continuing instances of omissions and errors in the investigation, charging and prosecution of these crimes, applying the non-discrimination principle to the question of which crimes should be selected for investigation and prosecution suggests that sexual and gender-based crimes should feature prominently in the Prosecutor’s investigation and charging strategy from the outset. Indeed, prioritizing the investigation and prosecution of crimes which are themselves a product of discrimination and which continue to be inadequately investigated and prosecuted by international criminal courts is arguably what Article 21(3) demands.

IV.Conclusion

In closing, although significant advances have been made in the effort to end impunity for sexual and gender-based violence committed in the context of war, mass violence or repression, persistent challenges remain. The drafters of the Rome Statute seem to have anticipated this. Thus, in addition to a broad range of sexual and gender-based crimes enumerated in the Rome Statute, the drafters included several provisions designed to ensure that these crimes would be adequately investigated and prosecuted, including Articles 54(1)(b) and 21(3). In light of this, it seems clear that whatever other justifications there may be for pursuing the investigation and prosecution of sexual and gender-based violence crimes, the Statute itself appears to require the Court – and particularly the Prosecutor – to pay particular attention to such crimes.

I think it goes without saying that implementation of these provisions hinges in large part on the acquisition of increased gender competence and gender expertise among the investigators, prosecutors and judges tasked with adjudicating these crimes. While progress has been made in this regard, there is still a long way to go.[82] If the courts and tribunals continue to operate on the basis of limited gender competence and expertise, they risk permitting and promoting discriminatory interpretations of the laws, rules and policies that affect the potential for redress for victims of sexual and gender-based violence. In doing so, they risk failing to achieve one of the most fundamental aims of the international justice system: to ensure that “the most serious crimes of concern to the international community as a whole [do] not go unpunished.”[83]


[1] Rome Statute of the International Criminal Court, preamble U.N. Doc. A/CONF.183/9, July 17, 1998, 37 I.L.M. 1002, 1030, (entered into force July 1, 2002) [hereinafter Rome Statute] (“[a]ffirming that the most serious crimes of concern to the international community as a whole must not go unpunished … [and d]etermined to put an end to impunity for the perpetrators of these crimes.”).

[2] See ICC, The States Parties to the Rome Statute, http://www.icc-cpi.int/Menus/ASP/states+parties/.

[3] The ICC budget enables the ICC to handle only a handful of trials per year. See International Criminal Court, Office of the Prosecutor, Prosecutorial Strategy: 2009-2012, 25 (2010) (projecting that the Prosecution will complete three cases and initiate a new case between 2009 and 2012).

[4] In the context of the ICC, the Court’s operations are divided into two broad categories: “situations” and “cases.” According to Pre-Trial Chamber I, “situations” are “generally defined in terms of temporal, territorial and in some cases personal parameters” and “entail the proceedings envisaged in the Statute to determine whether a particular situation should give rise to a criminal investigation as well as the investigation as such.” Situation in the Democratic Republic of Congo, Decision on the Applications forParticipation in the Proceedings of VPRS1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, ICC-01/04-tEN-Corr, 65 (Pre-Trial Chamber I, 17 January 2006). By contrast, “cases” are defined as “specific incidents during which one or more crimes within the jurisdiction of the Court seem to have been committed by one or more identified suspects” and entail “proceedings that take place after the issuance of a warrant of arrest or a summons to appear.” Id.

[5] International Criminal Court, Office of the Prosecutor, Weekly Briefing (17-24 January 2012).

[6] See International Criminal Court, Situations and Cases, http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/.

[7] Id. See Women’s Initiatives for Gender Justice, Gender Report Card on the International Criminal Court 2011, 121 (December 2011),  http://www.iccwomen.org/documents/Gender-Report-Card-on-the-International-Criminal-Court-2011.pdf [herinafter WIGJ 2011 ICC Gender Report Card].

[8] See Rape as a Weapon of War: Accountability for Sexual Violence in Conflict: Hearing Before the Subcomm. on Human Rights and the Law of the S. Comm. on the Judiciary, 110th Cong. (2008) (statement of Dr. Kelley Dawn Askin, Senior Legal Officer, Open Society Justice Initiative), available at http://judiciary.senate.gov/hearings/testimony.cfm?id=3225&wit_id=7081 [hereinafter Hearing] (noting that up till the mid-1990s, “[t]here was widespread acknowledgment that atrocities such as massacres, torture, and slave labor were prosecutable, but there was skepticism, even by legal scholars and military officials, as to whether rape was sufficiently serious to be prosecutable in an international tribunal set up to redress the worst crimes.”); Cate Steains, Gender Issuesin The International Criminal Court: The Making of the Rome Statute 357, 358 (Roy S. Lee ed., 1999) (“[I]t was only in relatively recent times that sexual and gender violence in armed conflict shifted from the periphery of the international community’s focus towards the centre of debate, and was recognized as an important issue in serious need of redress.”); Barbara Bedont & Katherine Hall-Martinez, Ending Impunity for Gender Crimes Under the International Criminal Court, 6 Brown J. World Aff. 65, 71 (1999) (noting that “in the tribunals established after the Second World War to prosecute German and Japanese war criminals, gender crimes were not pursued with the same degree of diligence as other crimes”).

[9] See Thematic Investigation and Prosecution of International Sex Crimes, conference held by Forum for International Criminal and Humanitarian Law in Cape Town, 7-8 March 2011,  http://www.fichl.org/activities/thematic-investigation-and-prosecution-of-international-sex-crimes/ [hereinafter Thematic Investigation and Prosecution of International Sex Crimes Cape Town Conference].

[10] Morten Bergsmo,  International Sex Crimes as a Criminal Justice Theme, FICHL Policy Brief Series No. 4 (2011), at 2,  http://www.fichl.org/fileadmin/fichl/documents/FICHL_Policy_Brief_Series/FICHL_PB4.pdf (summarizing comments of Margaret de Guzman).

[11] This phrase has not been precisely defined, though the description of the conference entitled Thematic Investigation and Prosecution of International Sex Crimes held in Cape Town in March 2011 notes “thematic prosecutions” entail “a theme of crimes[, which] is singled out and prioritized for investigation and prosecution, even if that means that there may not be enough resources to investigate murders or other serious crimes that do not involve that theme.”). Thematic Investigation and Prosecution of International Sex Crimes Cape Town Conference, supra note 9.

[12] See, e.g., Margaret de Guzman, Giving Priority to Sex Crime Prosecutions at International Courts: The Philosophical Foundations of a Feminist Agenda,  Temple University Beasley School of Law Legal Studies Research Paper Series, Research Paper No. 2011-02 (Feb. 2, 2011),  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1744404 (arguing that retribution and deterrence support the selection of sexual and gender-based crimes for prosecution at least some of the time, and that expressivism and restorative justice provide an even stronger foundation for giving priority to such crimes).

[13] See infra notes 66-80 and accompanying text (describing ongoing failures to investigate and prosecute SGBV crimes).

[14] Rome Statute,  supra note 1, art. 54(1)(b).

[15] Id., art. 21(3)

[16] Id., art. 13.

[17] Id., art. 14.

[18] Id., art. 15. If the Prosecutor acts proprio motu, he or she must obtain permission from a three-judge Pre-Trial Chamber before proceeding with an investigation. Id.

[19] Id., art. 53.

[20] James A. Goldston, More Candour about Criteria: The Exercise of Discretion by the Prosecutor of the International Criminal Court, 8 J. INT’L CRIM. JUST. 383, 392 (2010) (internal citations omitted).   Another commentator has argued that “the international community has provided the Court virtually no guidance about what goals it should seek to achieve through the cases it selects, beyond the vague mandate to strive to end impunity for ‘the most serious crimes.’” See Margaret de Guzman, Choosing to Prosecute: Expressive Selection at the International Criminal Court,  Temple University Beasley School of Law Legal Studies Research Paper Series, Research Paper No. 2011-16 (Jun. 17, 2011), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1780446.

[21] See International Criminal Court, Office of the Prosecutor, Report on Preliminary Examination Activities, 9 (13 December 2011), http://www.icc-cpi.int/NR/rdonlyres/63682F4E-49C8-445D-8C13-F310A4F3AEC2/284116/OTPReportonPreliminaryExaminations13December2011.pdf.

[22] See The Office of the Prosecutor for the International Criminal Court, Report on Prosecutorial Strategy (Sept. 14, 2006), at 7, http://www.icc-cpi.int/NR/rdonlyres/D673DD8C-D427-4547-BC69-2D363E07274B/143708/ProsecutorialStrategy20060914_English.pdf.

[23]Rome Statute,  supra note 1, art. 54(1)(b).

[24] Valerie Oosterveld,  The Definition of ‘Gender’ in the Rome Statute of the International Criminal Court: A Step Forward or Back for International Criminal Justice, 18 Harvard Hum. Rts. J. 55, 81 (2005).

[25] See Steains, supra note 8, at 375.

[26] Rome Statute,  supra note 1, art. 36(8)(b).

[27] Id. art. 44(2).

[28] Id. art. 42(9).

[29]. Id. art. 43(6).

[30] See id. art. 7(1).

For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

… .

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity.

Id.see also id. art. 8(2)(b). Art. 8(2)(b) of the Rome Statute defines “war crimes” as including

Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:

… .

(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.

Id.. Furthermore, Article 8(2)(e) of the Rome Statute defines “war crimes” as including

Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:

… .

(vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions.

Id. art. 8(2)(e); see also International Criminal Court,Elements of Crimes, art. 6(b)(1) n.3, Doc. PCNICC/2000/1/Add.2 (2000) (noting that although rape was not listed as a form of genocide under Article 6 of the Rome Statute, genocide committed by acts causing “serious bodily or mental harm” may include “acts of torture, rape, sexual violence or inhuman or degrading treatment”).

[31] Rome Statute,  supra note 1, art. 21(b)

[32] See Steains, supra note 8, at 371; Margaret de Guzman, Article 21, Applicable Law, in Commentary on the Rome Statute of the ICC 712 (Otto Triffterer ed., 2008).

[33] See Report of the Preparatory Committee on the Establishment of an International Criminal Court (Draft Statute and Draft Final Act), U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, Italy, 15-17 June 1998, art. 20(3), U.N. Doc. A/CONF.183/2/Add.1 (1998) [1998 Draft Statute Report of the Preparatory Committee] (including unbracketed provision (meaning without controversy) stating that the “application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, which include the prohibition on any adverse distinction founded on gender…”). See also de Guzman,  Article 21, Applicable Law, supra note 32, at 712.

[34] de Guzman,  Article 21, Applicable Law, supra note 32, at 712.

[35] Vienna Declaration, World Conference on Human Rights , Vienna, 14 – 25 June 1993, U.N. Doc. A/CONF.157/24 (1993), Part II, 38.

[36] Beijing Declaration and Platform for Action, Fourth World Conference on Women, 15 September 1995, A/CONF.177/20 (1995) and A/CONF.177/20/Add.1 (1995), 143 (emphasis added).

[37] Id.,  144.

[38] Resolution 1997/44 on The Elimination of Violence against Women, 11 April 1997, in United Nations Commission on Human Rights, Report on the Fifty-third Session, 10 March – 18April 1997, UNECOSOC Official Records, Supplement No. 3, E/1997/23, E/CN.4/1997/150, 145-149 (1997), 5.

[39] Id.,  4.

[40] Draft Statute for an International Criminal Court prepared by International Law Commission, Report of the International Law Commission on its Forty-sixth Session, 2 May – 22 July 1994, UNGA Official Records, Forty-ninth Session, Supplement No. 10, A/49/10 (1994) [ILC Draft Statute].

[41] Staeins, supra note 8 , 361.

[42] de Guzman,  Article 21, Applicable Law, supra note 32, at 712; see also Staeins, supra note 8, 372.

[43] Staeins, supra note 8, 372-73.

[44] Staeins, supra note 8, 373. As an example, delegates noted that some crimes, though not sexual in nature, could be targeted at men or women because of the roles they play in society. For instance, the targeting of young boys to prevent them from becoming soldiers is a crime of gender violence. Staeins, supra note 8, 374.

[45] See Rome Statute,  supra note 1, art. 7(3) (“For the purposes 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.”).

[46] Staeins, supra note 8, 374. See also Oosterveld, supra note , at 57 (noting the definition “reflected the use of ‘constructive ambiguity’ by the negotiators”); id., at 74 (noting that the phrase “within the context of society” was “chosen to give ICC judges the flexibility to determine the meaning of the phrase on a case-by-case basis”).

[47] Oosterveld, supra note 46 (noting that the “ICC will likely understand ‘context of society’ as equal to ‘socially constructed’”).

[48] See, e.g., Leena Grover,  A Call to Arms: Fundamental Dilemmas Confronting the Interpretation of Crimes in the Rome Statute of the International Criminal Court, 21 European J. Int’l L. 543, 559 (noting the “sparse legislative history” in relation to Article 21(3) of the Rome Statute”).   Although a number of authors have commented on Article 21(3), see, e.g, id., Kenneth Gallant, Individual Human Rights in a New International Organization: The Rome Statute of the International Criminal Court, in International Criminal Law: Enforcement 693 (M. Cherif Bassiouni, ed., 1999), none appears to deal in any detail with the no-adverse distinction phrase, see, e.g. Gallan, supra, 702, n. 46 (noting that his article would not deal with “issues raised by the application of the equal protection principle.”).

[49] While the Court is not bound by these instruments or the interpretation of their provisions, it is worth noting that the ICC has previously relied on human rights instruments for assistance in interpreting ambiguous terms in the Rome Statute. For instance, Trial Chamber I in the Lubanga case looked to the Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Law (“Basic Principles”) for assistance in interpreting the definition of “victim,” including the notion of harm. The Prosecutor v. Lubanga, Decision on Victim’s Participation, ICC-01/04-01/06-1119, 34-35 (Jan. 18, 2008). Significantly, the Appeals Chamber subsequently affirmed Trial Chamber I’s approach to the notion of harm, finding “no error in the Trial Chamber’s reference to the Basic Principles of 2005 for the purpose of guidance.” The Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and the Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008, ICC-01/04-01/06-1432, 33 (Jul. 11, 2008).

[50] See, e.g, Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 UNTS 31 (“First Geneva Convention”), art. 12; Geneva Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked members of the Armed Forces at Sea, 12 August 1949, 75 UNTS 85, (“Second Geneva Convention”), art. 12; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 7 December 1978, 1125 UNTS 3 (“API”), art. 75; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 7 December 1978, 1125 UNTS 609 (“APII”), art. 4. The nondiscrimination provision is phrased differently in the Third and Fourth Geneva Conventions. See Geneva Convention (III) Relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135 (“Third Geneva Convention”), art. 16 (“Taking into consideration the provisions of the present Convention relating to rank and sex, and subject to any privileged treatment which may be accorded to them by reason of their state of health, age or professional qualifications, all prisoners of war shall be treated alike by the Detaining Power, without any adverse distinction based on race, nationality, religious belief or political opinions, or any other distinction founded on similar criteria.”); Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287 (“Fourth Geneva Convention”), art. 27 (“Without prejudice to the provisions relating to their state of health, age and sex, all protected persons shall be treated with the same consideration by the Party to the conflict in whose power they are, without any adverse distinction based, in particular, on race, religion or political opinion.”). As commentators have stated, the language reflects a continuing commitment to equality but also the fact that “differentiation between prisoners of war [and civilians] is allowed on a number of grounds.” Judith Gardam and Michelle Jarvis, Women, Armed Conflict and International Law 61 (2001).

[51] See Third Geneva Convention, supra note 50, art. 14.

[52] Helen Durham,  International Humanitarian Law and the Protection of Womenin Listening to the Silences: Women and War 97 (H. Durham and Tracey Gurd, eds., 2005).

[53] See, e.g. Fourth Geneva Convention, supra note 50, arts. 38 & 50 (providing pregnant women and mothers of children under seven preferential treatment regarding, inter alia, food, medical care and protections against the effects of war).

[54] See, e.g., Protocol I,  supra note 50, art. 75(5) (requiring women whose liberty is restricted for reasons related to the conflict to be held in separate quarters from those of the men and to be under the immediate supervision of women).

[55] See, e.g., Third Geneva Convention, supra note 50, arts. 25 & 29 (requiring “separate dormitories” and “separate conveniences” from those provided for men).

[56] Durham, supra note 52, at 97-98; Gardam and Jarvis, supra note 50, at 61.

[57] Convention on the Elimination of all Forms of Discrimination against Women, 18 December 1979, UN Doc A/RES/34/180 (1980) (CEDAW).

[58] CEDAW General Recommendation No. 25, on article 4, paragraph 1, of the Convention on the Elimination of All Forms of Discrimination against Women, on temporary special measures (1999),  http://www.un.org/womenwatch/daw/cedaw/recommendations/General%20recommendation%2025%20(English).pdf [CEDAW Recommendation No. 25], 8.

[59] CEDAW, supra note 57, art. 4(1).

[60] CEDAW Recommendation No. 25, supra note 58, 15.

[61] CEDAW General Recommendation No. 19 on Violence Against Women, UN Doc. HRI/GEN/1/Rev.7 (1992) [CEDAW Recommendation No. 19], 11. See also Gardam & Jarvis, supra note 50, at 25.

[62] Id. (emphasis added).

[63] See supra note 8 and accompanying text.

[64] See, e.g., Kelly Askin, War Crimes Against Women: Prosecution in International War Crimes Tribunals 12-14 (1997).

[65] See Rome Statute, supra note 1, art. 53(1)(b) (requiring the Prosecutor to consider, when determining whether to initiate an investigation, whether the case is or would be admissible under Article 17 of the Statute, which states that a case is inadmissible if the “case is not of sufficient gravity to justify further action by the Court.”).

[66] See e.g., U.N. Research Inst. for Soc. Dev., “Your Justice is Too Slow”: Will the ICTR Fail Rwanda’s Rape Victims?, Occasional Paper No. 10 (Nov. 2005) (by Binaifer Nowrojee) [hereinafter Rwanda’s Rape Victims]; Michelle Staggs Kelsall and Shanee Stepakoff, ‘When We Wanted to Talk About Rape’: Silencing Sexual Violence at the Special Court for Sierra Leone) 1 Int’l J. Transitional Just. 355 (2007); Suzan M. Pritchett, Entrenched Hegemony, Efficient Procedure, or Selective Justice?: An Inquiry into Charges for Gender-Based Violence at the International Criminal Court, 17 Transnat’l L. & Contemp. Probs. 265 (2008); Susana SáCouto & Katherine Cleary, The Importance of Effective Investigation of Sexual Violence and Gender-Based Crimes at the International Criminal Court, 17 Am. U. J. Gender Soc. Pol’y & L. 339 (2009); Women’s Initiatives for Gender Justice, Gender Report Card on the International Criminal Court, published yearly between 2005 and 2010,  http://www.iccwomen.org/publications/index.php (accessed 10 January 2012).

[67] Prosecutor v. Norman, Fofana & Kondewa, Case No. SCSL-04-14-PT, Indictment, 22-29 (Feb. 4, 2004) (describing the multiple charges filed against Norman, Fofana, and Kondewa, including murder, but none relating to sexual or gender-based violence).

[68] Prosecutor v. Norman, Fofana & Kondewa, Case No. SCSL-04-14-PT, Decision on Prosecution Request for Leave to Amend the Indictment, 86-87 (May 20, 2004).

[69]Prosecutor v. Samuel Hinga Norman,Moinina Fofana and Allieu Kondewa, Case No. SCSL-04-14-PT, Reasoned Majority Decision on Prosecution Motion for a Ruling on the Admissibility of Evidence,  3 (May 24, 2005) (explaining that when sexual violence has been perpetrated against a civilian, the ICTR has routinely found that the acts fall within crimes against humanity).

[70] Id.  78.

[71]. Staggs Kelsall and Stepakoff, supra note 66, at 356.

[72] Staggs Kelsall and Stepakoff, supra note 66, at 364.

[73]. Gaëlle Breton-Le Goff, Analysis of Trends in Sexual Violence Prosecutions in Indictmentsby the International Criminal Tribunal for Rwanda (ICTR) From November 1995 to November 2002: A Study of the McGill Doctoral Affiliates Working Group on International Justice, Rwanda Section (Nov. 28, 2002), at 3,  http://www.womensrightscoalition.org/site/advocacyDossiers/rwanda/rapeVictimssDeniedJustice/

analysisoftrends_en.php. (accessed 11 January 2012). See also Valerie Oosterveld, Gender-Sensitive Justice and the International Criminal Tribunal for Rwanda: Lessons Learned for the International Criminal Court, 12 New Eng. Int’l & Comp. L. Ann. 119, 127 (2005) (citing Letter from Human Rights Watch to U.N. Security Council Members, Rwanda and the Security Council: Changing the International Tribunal (Aug. 1, 2003) (noting a significant drop in the number of indictments including charges for crimes of sexual violence from 1999 to 2003)).

[74] Rwanda’s Rape Victims, supra note 66, at 3.

[75]. Prosecutor v. Ndindabahizim, Case No. ICTR-2001-71-I, Decision on Prosecution Motion for Leave to Amend Indictment,  1 (Aug. 20, 2003); Prosecutor v. Muvunyi, Case No. ICTR 2000-55A-PT, Decision on the Prosecutor’s Motion for Leave to File an Amended Indictment, 54 (Feb. 23, 2005).

[76] See generally Joint Letter from Avocats Sans Frontières et al. to the Chief Prosecutor of the International Criminal Court, D.R. Congo: ICC Charges Raise Concern (July 31, 2006), available at  http://hrw.org/english/docs/2006/08/01/ congo13891_txt.htm.

We are disappointed that two years of investigation by your office in the DRC has not yielded a broader range of charges against Mr. Lubanga.… We believe that you, as the prosecutor, must send a clear signal to the victims in Ituri and the people of the DRC that those who perpetrate crimes such as rape, torture and summary executions will be held to account.

Id.see also Press Statement, Redress, ICC Prosecutor Leaves Unfinished Business in Ituri, DRC (Feb. 13, 2008) (Revised Feb. 20, 2008) http://www.redress.org (click link to “News & Events,” click link to “New Releases,” click on link to Press Statement dated Feb. 15, 2008) (“There is resentment that Thomas Lubanga and the UPC militia that he led are getting away too lightly. Arrested by the ICC in March 2006, Lubanga is said to be responsible for widespread killings and countless incidents of sexual violence. Yet, Lubanga has only been charged with recruiting and using child soldiers.”); Press Release, Women’s Initiatives for Gender Justice, Statement by the Women’s Initiatives for Gender Justice on the Arrest of Germain Katanga (Oct. 18, 2007), available at http://www.iccwomen.org/news/docs/ Arrest_of_Katanga.pdf.

The lack of charges for sexual violence against Lubanga was seen by many local DRC NGOs and ourselves to be a significant omission given the availability of information, witnesses and documentation from multiple sources including the United Nations and various human rights organizations showing the widespread commission of rape and other forms of sexualized violence by the UPC militia group.

Id.

[77] Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, Decision on the Confirmation of Charges (Jan. 29, 2007).

[78] Prosecutor v. Katanga & Chui, Case No. ICC-01-04-01-07, Decision on Evidentiary Scope of the Confirmation Hearing, Preventive Relocation and Disclosure under Article 67(2) of the Statute and Rule 77 of the Rules, 39 (Apr. 25, 2008) (allowing the testimony of a witness for whom the Prosecution could show adequate protection, but barring the statements of two other witnesses who had not been included in the Witness Protection Programme).

[79] Prosecutor v. Katanga & Chui, Case No. ICC-01/04-01/07, Decision on Prosecution’s Urgent Application for the Admission of the Evidence of Witnesses 132 and 287, 6-7 (May 28, 2008).

[80] Prosecutor v. Katanga & Chui, Case No. ICC-01/04-01/07, Submission of Amended Document Containing the Charges Pursuant to Decision, 32-33 (Jun. 26, 2008).

[81] Women’s Initiatives for Gender Justice, Gender Report Card on the International Criminal Court 121 (2011),  http://www.iccwomen.org/documents/Gender-Report-Card-on-the-International-Criminal-Court-2011.pdf (accessed Jan. 10, 2012).

[82] For instance, despite the fact that Article 44(2) of the Rome Statute requires the Prosecutor and the Registrar to consider the importance of legal expertise on violence against women in hiring staff within their respective organs, commentators have highlighted that gender expertise remains limited at the ICC. See e.g. Women’s Initiatives for Gender Justice, Gender Report Card on the International Criminal Court 64 (2010)  http://www.iccwomen.org/news/docs/GRC10-WEB-11-10-v4_Final-version-Dec.pdf (accessed Jan. 13, 2012) 62 (recommending the appointment of “more staff with gender expertise” in the ICC’s Office of the Prosecutor in order to “ensure the integration of gender issues within the heightened case load expected for 2011,” noting “[g]ender expertise within the OTP is essential … to support institutional capacity on these issues, and to enhance the integration of gender issues in the discussions and decisions regarding investigations, the construction of case hypotheses, the selection of cases and prosecution strategy”).

[83] Rome Statute,  supra note 1, preamble.

GENDER JURISPRUDENCE AND
INTERNATIONAL CRIMINAL LAW PROJECT

American University Washington College of Law
4801 Massachusetts Avenue, NW - Washington, DC 20016