Gender Justice And The ICC: Turning A Miracle Into Reality
Ahead of the first global review meeting of the Rome Statue and International Criminal Court, women from around the world are meeting in Mexico next week to develop a clear global agenda for advancing gender justice through advocacy and engagement with the International Criminal Court.
As the new millennium dawned, 120 states gathered in Rome in 1998 to negotiate the statute establishing the world’s first International Criminal Court, which came into force when the 60th state ratified it in 2002. Finally there is an international mechanism for holding war criminals to account, as indicted warlords from Darfur, Uganda and the Congo have since discovered to their peril. The signing of the Rome Statute, ratified by 111 states to date, also marked a key moment for the international women’s movement. As states gather in Uganda next month for the 10 year review conference of the ICC, it is worth taking a moment to reflect on the extraordinary campaign mounted by the Women’s Caucus for Gender Justice which led to the extensive gender provisions of the Rome Statute. The Women’s Caucus was successful in incorporating gender justice into the statute of the ICC in a number of ways: in the range of crimes recognised in the Statute; the status these crimes were accorded; the procedural provisions of the court; and in terms of ensuring fair representation of women on the Court itself.
Historically sexual and gender based violence, though a widespread and some have argued inherent feature of war, has scarcely been recognised, reported, discussed, investigated or punished. If the preponderance of these crimes was ever in doubt, the wars of the last century supplied a devastating catalogue of abuses. To cite just a few examples: in the 1930s the Japanese military introduced an institutionalised form of enforced sexual labour whereby women were abducted and held in ‘comfort stations’ to act as motivation and reward for solders ; in the 1945 the advance of the Red Army into Germany unleashed the mass rape of an estimated two million women ; in the Balkan Wars of the early 1990s sexual violence was used as a tool of ethnic cleansing and in Rwanda in 1994 as a tool of genocide, accompanied by insidious forms of sexual torture such as mutilation of sexual organs with machetes and the use of AIDS victims to form battalions of rapists, which ensured that victims suffered enduring trauma . For the most part, these crimes were ordered and executed with impunity.
It is against this horrifying backdrop that the Women’s Caucus, formed in 1997 and supported by 300 NGOs and women’s organisations from around the world, mounted a campaign to ensure that the world’s first permanent international court for the prosecution of war crimes shed light and due condemnation on sexual violence in war. The ICC recognises an unprecedented range of crimes of sexual and gender based violence. It prohibits “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, and other forms of sexual violence”(Articles 7,8) - the first time all these crimes have been enumerated in international law, accorded full status as war crimes, and also explicitly recognised as crimes which can constitute acts of genocide (Article 6). Further to these provisions, trafficking and persecution are recognised as crimes against humanity (Article 7), gender is identified as a grounds for persecution for the first time, and the Statute specifically states that the application and interpretation of the law must be without adverse distinction on the basis of a number of grounds, including gender (Article 21).
In addition to the types of crimes included in the Statute, the way these crimes are dealt with was another key area of focus for the Women’s Caucus. The Rome Statue includes provisions for witness participation and protection in recognition of the particular problems faced by rape victims in testifying against their attackers, and special trial procedures inspired by well documented criticisms of the way rape trials have been conducted at the domestic level (Articles 68,43). In certain cases, the Court has the power to award reparations in respect of victims including restitution, compensation and rehabilitation.The Rome Statute also enshrines the principle of ‘fair representation’ of men and women in the selection of judges and other staff of the Court, as well as requiring the appointment of advisors with specific expertise on sexual and gender based violence. These principles had never before been incorporated explicitly in a treaty forming an international body.
Given the trenchant opposition which the Women’s Caucus faced from certain states and NGOs, and despite compromises made to placate the sceptics, the achievements of Rome were far reaching and unprecedented. Seen in its proper historical context, the Rome Statute, with its extensive gender provisions attributable in large part to the work of the Women’s Caucus, is a significant step forward in the pursuit of international gender justice. As is often the case in international affairs, no one got the kind of International Criminal Court they wanted. Notably the eventual Statute fell short of the universal jurisdiction envisioned by its key proponents and UN Security Council members China, Russia and the USA have yet to ratify. But for, among countless others, the ignored and unvindicated victims of the Red Army’s advance into Germany in 1945, or the comfort women of South Asia still seeking justice, or the 70% of rape victims in Rwanda who are now dying of AIDS, there is some credulity in the declaration of the convenor of the NGO coalition which campaigned for the ICC, that “what was accomplished in Rome was a kind of miracle… Robertson."
The baton laid down by the Women’s Caucus has since been picked up by Women’s Initiatives for Gender Justice, which advocates for inclusion of gender based crimes in the investigations and prosecutions of the ICC and promotes the rights of female survivors of armed conflict throughout the justice process. Together with the Nobel Women’s Initiative, they are poised to take advantage of the opportunities offered by the ICC 10 year review conference to reinvigorate the campaign to bring gender justice to the fore. The International Gender Justice Dialogue they have organised next week in Mexico will once again bring together a caucus of inspiring and committed women, including Nobel Laureate Jody Williams, Deputy Prosecutor of the ICC Fatou Bensouda and Special Gender Advisor to the Prosecutor of the Court and feminist Professor Catherine MacKinnon, to build on the achievements of the Rome Statute and subsequent UN resolutions addressing gender issues in war and peacebuilding, and to chart a course for future mobilisation and action.
I will be attending the conference for openDemocracy and look forward to bringing you news of the Dialogue and portraits of some of the participants.