Gender-Inclusive Justice: Spotlight on the International Criminal Court
FRIDAY FILE: Every year, the Women’s Initiatives for Gender Justice produces a Gender Report Card that assesses the progress of the International Criminal Court (ICC) in rendering gender-inclusive justice. AWID spoke with Brigid Inder, the Executive Director of the Women’s Initiatives, about the issues highlighted by the ICC Gender Report Card 2010.
By Kathambi Kinoti
AWID: What are your objectives in producing the ICC Gender Report Card?
Brigid Inder (BI): We have produced the Gender Report Card on the ICC every year since 2005. It is one of our strategies to advocate for the inclusive participation of women in shaping the field of international criminal law and justice systems. We would like to see women effectively participate in ICC processes as beneficiaries, decision-makers, participants, practitioners and adjudicators.
With the Gender Report Card we have been able to demonstrate an undeniable link between institutional capacity on gender issues and the ability of the ICC to deliver gender-inclusive justice. While the ICC has the strongest record of any international tribunal for the number of women appointed to posts within the Court, there are great concerns about transparency in the recruitment process and the lack of institutional power for women in professional posts who are overwhelmingly clustered into low and mid level positions.
Overall, there are few women at the table at moments when key decisions are made about which situations to investigate, the number and type of incidents to focus on, the support and protection offered to witnesses, the way ‘security threats’ are analyzed, the framing of charges, and the analysis of evidence and information. These decisions are mostly shaped and constructed without a gender analysis being brought to bear at the decision-making levels. This is evident in the ongoing challenges related to bringing gender based crimes before the ICC.
AWID: Since the previous Report Card was released in 2009, would you say that the ICC has developed a stronger jurisprudence on crimes perpetrated against women in conflict?
BI: In the last 12 months we have witnessed many firsts for the ICC.
For the first time charges of genocide were included in an arrest warrant against an indictee for acts of rape and sexual violence;
The Court heard its first witness testimony in relation to charges of sexual violence;
This year the first expert witness to address gender based crimes appeared before the court. Radhika Coomaraswamy, the Special Advisor to the Secretary General on Children and Armed Conflict, appeared in the case against former DRC rebel leader Thomas Lubanga. She provided insight into the gender dimensions of the enlistment and conscription of child soldiers;
For the first time three victims of crimes in cases before the ICC were also able to testify;
An all women bench is presiding a trial at the ICC for the first time and in fact this is a first in any of the international tribunals;
The area of most concern is the persistent challenge to sustaining charges in a number of cases, specifically charges for gender-based crimes. Several judicial decisions have questioned the quality of filings, the sufficiency of evidence and insufficient linkages between the charges and elements of the crimes.
To date, the ICC has included charges for gender-based crimes in all situations where indictments have been issued, and in seven out of twelve cases brought by the Office of the Prosecutor. However, 40% of the charges for gender-based crimes have been dismissed from the cases for which confirmation hearings have been held, with judicial decisions mostly citing insufficient evidence. There is no other category of charges which consistently faces these challenges.
In the case against rebel leader, and former DRC Vice President, Jean-Pierre Bemba, 70% of the charges for gender based crimes were dismissed before it got to trial. This was due partly to insufficient evidence, but largely due to an interpretation by the judges which departed from ten years of practice and jurisprudence at international tribunals and national courts, regarding cumulative charging for crimes of sexual violence, thus leading to the dismissal of charges for rape as torture and outrages upon personal dignity.
AWID: To what extent are women victims of armed conflict meaningfully participating in ICC processes?
BI: The ICC process allows for the participation of victims of conflict. To date, 746 victims have been recognized by the ICC to participate in the legal proceedings, of which 254 have been women. Recognition of ‘victims’ means that they are represented by lawyers in the cases, their lawyers can provide information to the Court and ask questions of the witnesses on behalf of the victim.
In the Lubanga case the legal representatives for victims requested the judges to consider additional charges in the case for sexual violence based on the witness testimony and the experience of the victims they represented. In relation to Sudan, only one female victim was recognized, but unfortunately that case was dismissed in its entirety due to lack of evidence. There are no women currently recognized as victims in cases related to Sudan, even though it is evident that rape and other forms of sexual violence have been committed on a large scale in the Sudan conflict.
There are several challenges for both victims and witnesses. For witnesses who come to the Hague to testify they are far from their family and support networks, and the Court process can be intimidating especially for those with little prior exposure to, or information about a formal justice process. Some witnesses may also feel a level of vulnerability at testifying before the accused person and their defense lawyers. They may become upset at recounting the violence committed against them or that they witnessed. Special measures including voice distortion or a screen shielding them from public view and from the direct view of the accused have been used by the Court to facilitate testimony for witnesses testifying about sexual violence.
AWID: The Outreach Unit of the ICC has issued a set of principles for communicating about gender based violence. However, no guidelines have been developed for a specific prosecutorial strategy on sexual and gender based violence. What are some of the guidelines that you would like to see developed?
BI: The Outreach Unit has the mandate to inform victimized communities about the Court and its structures including the Trust Fund for Victims and to explain the opportunities for their participation in the legal proceedings.
The Unit has few targeted strategies to ensure that women victims are reached. This has contributed to the low number of women applying to the Court to be recognized as victims. They simply do not have the same access to information as men in their communities. The Outreach Unit and the Victims Participation and Reparations Section need to develop more nuanced approaches in reaching out to women, women’s organizations and women leaders. There have been few specific meetings for women.
But I must say that in the last twelve months we have seen a more focused approach. However, it will take two to three years to see the results of this. Still, only 25% of those who participate in meetings convened by the Outreach Unit are women.
AWID: What are the current priorities of the Women’s Initiatives in relation to the ICC?
BI: A key issue is the election of the next Chief Prosecutor and six more judges to the ICC. The next Chief Prosecutor needs to rebuild the credibility of the Prosecutor’s office, provide a new vision and leadership for the staff and States Parties, and restore legal rigor to its work. We are assessing potential candidates, meeting and advising possible contenders, and advocating for gender competence amongst the skill-set needed in this position. We hope there will be strong female contenders in the field including the current Deputy Prosecutor, Fatou Bensouda, who is justifiably one of the leading candidates for this position.
For the election, States Parties have formed a Search Committee of diplomats who will narrow down the field and recommend up to three final candidates to the Bureau of States Parties who will, in effect, make the final decision regarding the new Prosecutor. Unfortunately there are no women on the Search Committee. Although they considered geographical representation on the Committee, gender representation was not given any thought. So we have a lot of work to do to support women to stand and ensure that the Committee avoids any actual or perceived gender bias.
Another priority is our ongoing political and legal monitoring and advocacy with the Court on all of its cases and investigations. This year there are three trials underway which have unique gender issues. The Court will conclude its first case in 2011 and although there are no charges for gender based crimes in the case we believe there has been enough evidence to include a strong gender analysis in the judges final decision regarding the experience of girl soldiers, which may broaden the social and legal understanding of child soldiers. We will follow all the cases and file on key gender issues, if needed. The Women’s Initiatives was the first non-governmental organization to file a case at the ICC and to date it is the only women’s rights organization to have been recognized with amicus curiae status.
We are also preparing for our next International Gender Justice Dialogue which will be held in 2012 from 16-18 April in Istanbul, immediately prior to the AWID Forum. This will be our second Dialogue and we are looking forward to bringing together gender justice advocates, women’s rights and peace activists including from armed conflicts, UN representatives and practitioners, to review progress in accountability for gender-based crimes and create a global agenda to advance gender justice. There are so many exciting voices, new initiatives and opportunities to transform these issues.
 A confirmation hearing is part of the pre-trial stage of a case before the ICC. At a confirmation hearing, a suspect appears for the first time before the court and is informed of the charges brought against him/her, and his/her rights in the trial process.