Transcript Gender Justice and the ICC - Galway Conference & Events

Prof. Siobhán Mullally, Faculty of Law, University College Cork,
[email protected]
Presentation to the Summer School on the International Criminal Court 2012
Irish Centre for Human Rights, NUI Galway
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)
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"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
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UN Women: 250,000-500,000 women raped in Rwanda (1994)
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20,000-50,000 women raped in BiH in early 1990 -s
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Sierra Leone 94 per cent of displaced households surveyed had
experienced sexual assaults, including rape, torture and sexual slavery
(Physicians for Human Rights, 2002)
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Approx 250,000 Cambodian women were forced into marriage
between 1975 and 1979. (UNIFEM)
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DRC? ‘worst place on earth to be a woman’ (M Wallstrom)
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Rape as a ‘weapon of war’ -- connotes the systematic use of rape
and sexual violence in war
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(Akayesu: 2 Sept 1998 – ICTR)
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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.
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Akayesu, paras 505-509, 516 (rape as
genocidal)
(measures designed to prevent births)
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Furundzija ICTY (12 December 1998)
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Kunarac (ICTY)
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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.
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."
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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
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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.
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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;
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EVIDENCE IN SEXUAL VIOLENCE CASES
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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
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· 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)
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..legal expertise on specific issues, including, but not limited to,
sexual and gender violence and violence against children.
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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) )
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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)
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Article 43.(6) (Victims and Witnesses Unit)
 The Unit shall include staff with expertise in
trauma, including trauma related to crimes of
sexual violence.
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Lubanga – exclusion of GBV crimes
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14 other cases, 9 include GBV charges
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GBV charges – in all 3 core international crimes
(genocide in Bashir case)
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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)
Charges – ‘shockingly narrow’? –(recruitment and use of child
soldiers)
 WIFGJ – Letter to Prosecutor
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 ‘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
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Confirmation of charges – PTC (general supervisory power’ Amicus Curiae brief not allowed from WIFGJ – should have related
to DRC situation
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Legal Representatives of Victims
 - request that Trial Chamber modify the legal characterisation of the
facts (Regulation 55) - (Importance of victim participation in GBV
cases)
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Accountability gap on GBV – as learned from Ad-Hoc tribunals
(charges not always included in initial indictment – Akayesu
(intervention of J.Pillay)
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Appeals Chamber – alteration to legal characterisation could not
exceed facts described in charges (could not include crimes of
sexual slavery eg)
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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.’
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Dissenting Judgment: Odio Benito
‘using children to participate actively in the hostilities’
should
have been defined, and sexual violence
dimension included
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Judgment – Article 74 of Statute precluded taking account of
evidence of sexual violence presented (not linked to charges brought)
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Understanding of the Crime of child soldiering- -outdated, excludes
gendered experiences, dominant male paradigm
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Selective justice – efficiency ?
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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)
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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
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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)
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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)
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Consent? – if presumed – what consequences
for women’s agency (Halley - Engle)
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Buss: - Capturing truth? (ICTR)
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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)
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Rape as weapon of war – overlooks ‘violence and its wider links to
gender and power’ (rather than women’s experiences of violence
only)
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Reparations – Remedies?
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Collective or individual
Socio-economic needs / rights
Health care
Reproductive harms?
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(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 )
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Subsequently: Res 1889 (2009) (returns to broader
questions of political participation, and looks to socioeconomic rights, sexual and reproductive health in postconflict situations.
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Expanding the agenda ..