THE PROSECUTION OF GENDER-BASED CRIMES AGAINST WOMEN BY THE INTERNATIONAL CRIMINAL COURT

CHAPTER ONE

1. INTRODUCTION

In recent years, there has been increased international attention to ending impunity for gender-based crimes against women perpetrated in contexts of mass atrocities. As the International Criminal Court (ICC) is based on the principle of complementarity and its role in delivering effective justice has come to the forefront[1]. The hard-won gender justice provisions of the Rome Statute, the treaty establishing the International Criminal Court (ICC), provide a means to change this historical path. The statutes give the ICC power to prosecute a broad range of gender-based crimes in situations of conflict and non-conflict. By prosecuting these crimes, the ICC can challenge a long-standing pattern of impunity, recognized the harm suffered by victims, and send a strong message that gender-based crimes are among the most serious crimes of concern to the international community as a whole. This master thesis will focus on the prosecution of gender-based crimes that are committed against women, such as rape, sexual slavery, forced pregnancy, forced sterilization, and other forms of sexual violence. These types of violence towards women have occurred in every armed conflict throughout world history, and many women are subjected to violence even during peacetime. Therefore, my thesis will focus on the jurisprudence of the International Criminal Court regarding gender-based crimes against women.

1.1 BACKGROUND TO THE STUDY

The ICC was established as a court of last resort to prosecute the most heinous offenses in cases where national courts fail to act. Unlike the International Court of Justice, which hears disputes between states, the ICC handles prosecutions of individuals. The court’s jurisdiction extends to offenses that occurred after July 1, 2002, that were committed either in a state that has ratified the agreement or by a national of such state. Although the Rome Statute was widely praised (some 140 countries had signed the agreement by the time it entered into force), few countries in the Middle East or Asia joined. Further, by 2002, China, Russia, and the United States had declined to participate, and the United States had declined to participate, and the United States had threatened to withdraw its troops from United Nations peacekeeping forces unless its citizens (both military and civilian) were exempted from prosecution by the ICC[2].

The first hearing, held in 2006, was to decide whether charges should be brought against Thomas Lubanga, who was accused of recruiting child soldiers in the Democratic Republic of Congo. Lubanga’s trial, the first conducted by the ICC, began in January 2009, and in March 2012 the court found him guilty and later imposed a 14-year prison sentence. In May 2007 the court issued arrest warrants for a government minister and a militia leader in Sudan for their roles in war crimes and crimes against humanity committed by Sudanese forces in Darfur. The ICC issued a similar warrant in March 2009 for Sudanese Pres. Omar Hassan Ahmad al-Bashir the first time the court sought the arrest of a sitting head of state[3].

The International Criminal Court (ICC) offers a new and unique venue through which to pursue gender justice claims. The Statute is revolutionary in many ways: it creates the first permanent court aimed at ending impunity for genocide, war crimes, and crimes against humanity; it establishes a complementarity regime to balance international and national jurisdictional claims over the prosecution of these crimes, and it blends retributive and victim-centered approaches to justice. Of central importance here, the Rome Statute gave the International Criminal Court explicit new rules capable of challenging gender distortions and inequalities in international humanitarian and criminal law.[4] The Rome Statute of the ICC is a historic development overcoming the discriminatory and inadequate treatment of gender-based crimes. The Rome Statute is the first international instrument that encompasses various forms of gender crimes as underlying acts of both crimes against humanity and war crimes committed in international and non-international armed conflicts. These include rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and other forms of sexual violence[5].

In the last two decades, ICC such as the International Criminal Tribunal for the former Yugoslavia and the International Tribunal for Rwanda have issued judgments describing gender-based crimes as War crimes, crimes against humanity, and genocide, depending on the context in which the crimes have been perpetrated[6]. Over the past few decades, the international community has taken progressive steps to put an end to impunity for gender-based crimes. The Statute of the ICC is the first international instrument expressly to include various forms of gender-based crimes — including rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and other forms of sexual violence — as underlying acts of both crimes against humanity and war crimes committed in international and non-international armed conflicts. The Statute also criminalizes persecution based on gender as a crime against humanity. Gender-based crimes may also fall under the Court’s jurisdiction if they constitute acts of genocide or other acts of crimes against humanity or war crimes. The Rules of Procedure and Evidence (“Rules”) and the Elements consolidate important procedural and evidentiary advancements to protect the interests of victims and enhance the effectiveness of the work of the Court[7].

After World War II, international criminal court witnessed many developments. The Nuremberg International Military Tribunal was created in order to bring to justice Nazi leaders who were guilty of core international crimes committed during World War II. In the course of the trial 22 persons were tried. At the same time (1946), US Army General Douglas MacArthur, under the powers given to him by the Allied States, issued a special proclamation by which the International Military Tribunal for the Far East (IMTFE or Tokyo IMT) was established. In its work the Tokyo IMT convicted 25 Japanese defendants for their role in World War II. Both Tribunals had the same mandate – to prosecute crimes against peace, war crimes and crimes against humanity. Even though the tribunals had ample evidence that acts of sexual violence against women had been committed on a large scale and had the possibility to prosecute them as crimes against humanity or as war crimes, they failed to do so[8]. 

However, the Tokyo Tribunal did prosecute the crime of rape and several Japanese officials were convicted for violations of laws and customs of war which included rape and sexual slavery. Even so, these crimes were only prosecuted alongside other war crimes or crimes against humanity during conflict or peacetime, which meant that gender-based crimes were not considered to be severe enough to stand alone. Hence, gender-based crimes against women remained much underrepresented. Most notably, the systematic rape and sexual slavery by the Japanese imperial army of as many as 200 000 women was completely ignored in the Tokyo trials[9]. These women were referred to as “comfort women” and were forced to be prostitutes for Japanese soldiers as part of official government policy, for which the Japanese government accepted responsibility and apologized, but only in 1992[10].

Both tribunals mostly focused their attention on crimes against peace, not war crimes or crimes against humanity and especially not crimes against women. The reasons for not prosecuting gender-based crimes after World War II have been pondered over by many scholars. Some argue that women rarely had power or influence in those tribunals[11]. Others argue that, after armed conflicts or non-armed conflict, it is generally considered more important to prosecute crimes which have death as their outcome[12]. In any case, gender-based crimes committed in World War II were not adequately prosecuted. After the Nuremberg and Tokyo IMTs, there was no progress in international criminal court for a long time with regards to gender-based crimes. Further developments of the jurisprudence took place again in the 1990’s following the bloodshed in Yugoslavia and Rwanda and the establishment of ad hoc international criminal tribunals for these countries (ICTY and ICTR.

Before the establishment of the ICTY, various women’s groups exerted significant pressure in order to ensure prosecution of gender based crimes against women. They did not want these crimes to go unpunished, as was the case in previous conflicts[13]. This pressure paid off and the ICTY, in its Statute, explicitly mentions rape as a crime against humanit y for th first time in international criminal law. Furthermore, a number of developments occurred in the ICTY’s case law as well. In the Čelebići camp case[14] the judges held that rape could constitute torture, which it reiterated in the Furundžija case[15]. In the Kunarac case[16] the ICTY issued the first indictment based solely on crimes of sexual violence against women. One of the accused, Kunarac, was also convicted of the enslavement of women, representing the first time that enslavement was charged as a crime of sexual violence (sexual slavery)[17].

Regarding its case law, perhaps the most important sexual violence case in the ICTR is the Akayesu case[18]; in which the accused Akayesu was convicted of crimes against humanity for acts of sexual assault and where it was established that sexual violence was an essential part of the genocide in Rwanda. As with the ICTY, much was expected from the ICTR with regard to proper prosecution and punishment for gender based crimes. And indeed, these tribunals’ work had a very good beginning with some groundbreaking cases, such as Kunarac, Furundžija and Akayesu. However, the ICTY and ICTR have later been criticized for the subsequent stagnation in the investigation and prosecution of sexual and gender based violence and for their failure to fulfil the high expectations placed on them[19].     

1.2. STATEMENT OF THE PROBLEM

The International Criminal Court  (ICC) prosecute individuals, not groups or states. That is any individual who is alleged to have committed crimes within the jurisdiction of the ICC maybe brought before the ICC. Over the last 30 years, the world has seen progress, largely due to feminists, in delivering justice for gender-based crimes-particularly sexual violence. However, most of this progress has relied on reconstructing gender-specific experiences into pre-existing legal frameworks that didn’t care much for gender[20]. For example, the International Criminal Tribunal for Rwanda’s groundbreaking finding rape as an act of genocide in the Akayesu case and as a form of torture. These precedents were built on genderd readings of crimes whose definitions make no explicit reference to sexual or gender-based violence against women. The Rome Statute that created the International Criminal Court (ICC) was certainly an improvement on the Genocide and Geneva Conventions in its explicit codification of sexual and gender-based crimes. However, 20 years of the courts practice have also shown its limitations, with only two standing convictions for sexual and gender-based crimes.[21]

Nevertheless, despite evidence charges of gender-based crimes against women. The ICC has thus far had a poor track record in prosecuting suspects for Gender-based crimes. In subsequent years, experience has shown us that recognizing acts of gender-based crimes as an ICC crimes is the first step, but does not, in itself, gurantee that perpetrattors will be held accountable. This is because alleged pepetrators are shielded by the power holders often through state or institutional machinery. For example, in 2016 the trial chamber of the ICC had convicted Jean Pierre-Bemba a senior military commander in the Central Republic. He was criminally responsible for sexual violence committed under his control  through the application of the principle of command responsibility and sentenced to 18 years in prison.  After all, it was the first conviction by the ICC for gender-based crimes against women. However, in 2018, the appeals chamber reversed the conviction. It decided that although rampant sexual violence was present in the situation, there was inadequate evidence to link Bemba  with the same, and so, his conviction for such violence through the principle of command responsibility was overturned.[22]Also, in the case of Robert Jackson, the chief prosecutor of the Nuremberg trials, chose not to prosecute the Nazi officials for sexual and gender crimes, despite possessing evidence. In fact, the Office of the Prosecutor’s prosecutorial policy is to focus on those who, having regard to the evidence gathered, bear the greatest responsibility for the crimes, and does not take into account any official position that may be held by the alleged perpetrators. The issue is exacerbated by the fact that many victims will never gain access to the justice system in the first place. It is common for victims to express reluctance to report the violence owing to stigma, lack of confidence in the justice system[23]. This was a major setback to prosecutions for such crimes in the ICC.

The ICC’s implementation record in regard to gender justice has been partial and inconsistent.[24]The constitutive instruments of international courts typically required that judges come from different nationalities and legal cultures. But there is the lack of gender-sensitive judging at the ICC. There has been a lack of experience and/or understanding of what gender-based crimes entailed. One thing that is for sure, women are more victims of gender-based crimes in peace and non-peacetime. These crimes include; gender-based violence such as mass and systematic rape, force prostitution, forced pregnancy and sexual slavery. The Rome Statute of the International Criminal Court goes further, requiring states to consider the need for fair representation of female and male judges on the ICC bench will sustain the gender balance in addressing issues of Gender-Based Crimes. When women were absent from International Criminal Court benches at Nuremburg and Tokyo, crimes against them went virtually ignored. Despite horrendous tales of rape and other sex-based violence against women in World War II, the Nuremberg prosecutors chose not to prosecute or introduce evidence about these crimes. The lack of both sexes on the bench matters to normative legitimacy for example, if men and women approach law or facts differently, or infl uence each other’s decisions based on either socially constructed “gender” or biologically predetermined distinctions, benches with a disproportionate number of either sex are inherently flawed. This was evident at the ICTR where the original bench of nine judges only included one woman, Judge Navi Pillay[25].

As a result the International Criminal Court is a judicial institution with no independent.[26] The ICC supposed to be an independent body whose mission is to trial individuals for crimes within its jurisdiction without for a special mandate from the United Nations. However, the ICC lacks that independence because of its reliance on state cooperation with countries worldwide for support. As a judicial institution, the ICC does  not have its own police force or enforcement body; thus, set up in Part IX of the Rome Statute it relies on a system of cooperation with countries worldwide for support, especially in facilitating investigations and arresting and tranfering suspects[27]. However, the ICC faces some consequences that is delayance in investigation and arrests of suspects depend largely on the cooperation of member states and UN organisations. This led to the national jurisdiction losing the public confidence of its citizens[28].

This means there is criticism on the way international criminal court address gender-based crimes against women. This thesis will provide a possible explanation for this address gender-based crimes against women. This thesis will provide a possible explanation for this issue. It will investigate on how the ICC prosecute gender-based crimes against women.

1.3 RESEARCH QUESTIONS

From the above statement, the following research questions will guide the study.

1.3.1 MAIN RESEARCH QUESTION

• What are the international legal and institutional frameworks in protecting the rights of women against gender-based crimes?

1.3.2  SPECIFIC RESEARCH QUESTIONS                                   

• To what extent have gender-based crimes against women been prosecuted by the ICC?
• What are the challenges faced by International Criminal Court when addressing Gender-based Crimes against women?
• What are those remedies and policies that can be used when prosecuting Gender-based crimes against women?

1.3.4  OBJECTIVES OF THE RESEARCH

1.3.5  MAIN RESEARCH OBJECTIVE

• The aim of this study is to analyse the international legal and institutional frameworks in protecting the rights of women against gender-based crimes during armed conflict and peacetime.

1.3.6  SPECIFIC RESEARCH OBJECTIVES

• To examine the extent of which gender-based crimes against women have been prosecuted by the ICC.
• To access the challenges faced by International Criminal Court when addressing Gender-based Crimes against women.
• By bringing out remedies and policies that can be used when prosecuting Gender-based crimes against women.

LAW PROJECT TOPICS WITH MATERIALS