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Women’s Initiatives for Gender Justice
http://www.iccwomen.org/news/docs/WI-WomVoices3-15/WomVoices3-15.html
Is the International
Community Abandoning the Fight Against Impunity?
Sexual & Gender-Based
Violence Analysis of Progress but Accountability & Justice Challenges
Continue
The Women’s Initiatives for
Gender Justice recently participated in a debate hosted by the International
Center for Transitional Justice (ICTJ) on whether the international community is abandoning the fight against
impunity. The debate brought together leading experts and
figures in the field of international criminal law, transitional justice, and
human rights including Fatou Bensouda (Prosecutor of the International Criminal
Court), Betty Murungi (Former Commissioner of Kenya’s Truth,
Justice and Reconciliation Commission), David Tolbert (ICTJ President) and Zeid Ra’ad Al Hussein (UN High Commissioner for Human
Rights), to discuss and critically debate the status of impunity. The following
is the contribution from the Women’s Initiatives’ contribution to this timely
debate:
As an advocate for gender justice
in conflict situations under investigation by the ICC, we, together with our
more than 6,000 grassroots partners, associates and members, have seen a
growing momentum in the international community, including government actors,
civil society and international organisations, towards tackling impunity for
SGBV crimes.
When we look at the judicial
treatment of SGBV crimes through international justice mechanisms, including
the International Criminal Tribunal for the former Yugoslavia, the
International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone
and the Extraordinary Chambers of the Courts of Cambodia, progress in bringing
accountability has certainly been mixed. Michael Ignatieff states aptly that
“we do ourselves no favour when we comfort ourselves with illusions” and that
in order to push the international justice project forward we need to be honest
about its shortcomings. Indeed, as noted by Brigid Inder, Executive Director of
the Women’s Initiatives, despite the overwhelming numbers –millions of mostly
women and girls victimised throughout history and still today by sexual and
gender-based crimes – only 16% of those accused of war crimes, crimes against
humanity and genocide have been convicted of sexual violence crimes through
international legal mechanisms.
Amongst other reasons, Brigid
Inder has described the challenges to accountability for SGBV as being due to
persisting “gender-based discrimination, reflected in the selective incorporation
of ‘gender’ within legal theories and the incomplete integration of these
issues within legal concepts and liability regimes.” Inder has explained that
“accountability for sexual and gender-based crimes continues to be exceptional
and elusive compared to the scale of its commission. This historic and ongoing
marginalisation in the law has created a gender debt, and unless and until we
transform both legal norms and gender perceptions we will continue to fail
generations of victims/survivors.”
Many governments and
organisations, including the Women’s Initiatives, continue to be galvanised by
these ongoing challenges, and whilst the overarching picture is disappointing,
progress is evident in the efforts by international and domestic civil society
actors, most often women’s rights activists, and their work documenting
incidents of SGBV and advocating for accountability for these crimes
domestically and before the ICC. There are also signs of increasing attention
and engagement by local decision-makers and judicial institutions to
strengthening systemic responses to such acts.
Recent examples from Eastern DRC
include the introduction of a new provincial law by authorities in South Kivu,
which expands prohibitions on gender-based forms of violence in the context of
an ongoing armed conflict. Local judges in the province have undertaken
inspections of police files and queried why the sexual violence cases have not
been brought to court. The Police in Province Orientale have initiated monthly
meetings with gender justice advocates to review progress on sexual violence
cases and to discuss strategies to strengthen their investigative capacity and
practices. There is also a growing momentum within Sudan for reform of its rape
law in compliance with international standards. Initiated by local women’s and
human rights actors and legal practitioners, this effort is now supported by a
range of Sudanese political parties, personnel from government ministries, the
media and academics. In Uganda, sexual violence was included within the more
recent investigations associated with the domestic war crimes court (the
International Crimes Division) and future cases before this court associated
with the LRA-related conflict are expected to include charges for SGBV. All of
these countries have situations under investigation by the ICC and are also
sites of important domestic gender justice developments.
In addition to domestic progress,
the broader international recognition of the scale of conflict-related sexual
and gender-based crimes is on the rise. An example is the Declaration of
Commitment to End Sexual Violence in Conflict, launched by the United Kingdom
(UK) government during the UN General Assembly in 2013, which 155 countries
have endorsed. By doing so, a large percentage of the international community
has agreed that there should no longer be a culture of impunity for those who
commit sexual violence in conflict and that bringing those responsible to
justice is a critical element of prevention efforts.
The establishment of the UN
Office of the Special Representative of the Secretary-General on Sexual
Violence in Conflict (SRSG) by the UN Security Council in Resolution 1888
(2009), introduced another important mechanism to strengthen the global
community’s efforts to combat sexual violence in armed conflict. Resolution
1888, which was co-sponsored by more than 60 UN Member States, called for the
appointment of the SRSG to provide strategic leadership with governments,
including military and judicial representatives, as well as with all parties to
armed conflict and civil society, to address sexual violence in armed conflict.
A key priority of the SRSG’s Office is “to end impunity for sexual violence in
conflict by assisting national authorities to strengthen criminal accountability,
responsiveness to survivors and judicial capacity”.
The United Nations Trust Fund to
End Violence against Women, established in 1996, is an effective multi-lateral
mechanism designed to support the prevention of and responses to gender-based
crimes. The Trust Fund is uniquely able to disburse funds to local and
international organisations, and has supported, since its creation, 368
initiatives in 132 countries and territories, many of which are working to
tackle sexual and gender-based violence in conflict.
As part of its Preventing Sexual
Violence in Conflict Initiative, the UK also hosted the Global Summit to End
Sexual Violence in Conflict in London last June. This unprecedented event was
the largest international gathering ever held on the issue, with more than
1,700 delegates, including victims/survivors, NGOs and experts, as well as 123
country delegations, including high level Ministers.
Such examples of efforts by UN
and ICC member states to end impunity for SGBV are encouraging signs that support
for these issues is being mobilised on a larger global scale than we have ever
seen before.
Turning to the work of the ICC,
while the Court is only one of several mechanisms both globally and
domestically needed to end impunity, it is an institution emblematic of
international efforts to bring accountability for mass atrocities, including
sexual and gender-based crimes. It represents and inspires these efforts in the
domestic realm under the principle of complementarity. As UN High Commissioner
for Human Rights Al Hussein states, the ICC is “the most powerful symbol of the
progress made in the fight against impunity for international crimes”. There
have been several stumbling blocks as expressed by commentators in this debate
but with 123 States having signed up, which represents over 60% of all nations,
this alone shows a shared resolve to look past sovereign borders towards the
larger justice project. The latest state to sign the Rome Statute and join the
Court is Palestine, which has chosen to expose itself in addition to other
actors such as Israel to potential ICC prosecutions. This speaks to the
importance of the Court and its mandate to shine the spotlight of international
law upon even the most contentious and long-lasting conflict zones.
In terms of accountability for
sexual and gender-based crimes, the ICC’s track record to date is mixed, but
its historic roots and some recent developments in its cases show a promising
trend. Structurally, the Court’s legal framework represents a concrete advancement
in criminalising SGBV crimes as it explicitly provides for the prosecution of
the broadest range of such crimes of all international criminal courts and
tribunals. The international community for the first time agreed in 1998 to
criminalise in the Rome Statute: rape, sexual slavery, enforced prostitution,
forced pregnancy, enforced sterilisation, trafficking, persecution on the
grounds of gender, and other forms of sexual violence.
The Court has also provided a
concrete platform for victims to seek to be formally recognised by the ICC, to
participate in the legal process and to express their views and interests via a
legal representative. This means that for the first time at a systemic level
the voices of victims/survivors of rape, sexual slavery and other mass
atrocities have the potential to be heard and considered within the judicial
process.
The Rome Statute also provides
for reparations to victims either through those convicted or the ICC’s Trust
Fund for Victims (TFV), which is the first of its kind. The TFV’s mission is to
deliver programmes that address harms resulting from genocide, crimes against
humanity and war crimes, and since 2008, it has provided support to over
110,000 victims of crimes under the jurisdiction of the Court, including tens
of thousands of survivors of SGBV, through physical and psychological
rehabilitation and material support.
In reality, regarding the three
verdicts issued by the Court so far, there have been no convictions for
gender-based crimes, the gender dimensions of the crimes of enlistment,
conscription and use of children in hostilities were not adequately considered
in the Lubanga case, and the OTP’s appeal of Katanga’s acquittal in relation to
acts of sexual violence was withdrawn. We await the final appeal against the
last of these three cases, in which Ngudjolo was acquitted of all charges,
including sexual violence.
To confront and change this
longitudinal record, in 2014 the ICC Office of the Prosecutor (OTP) produced
the Policy Paper on Sexual and Gender-Based Crimes, which outlines overarching
principles for the Office as a whole, contains specific operational strategies
relevant to each stage of its mandate, and identifies the institutional
capacity desirable to further strengthen its performance. As the first policy
of its kind produced by an international legal mechanism, this development is a
sign of proactive leadership by the OTP on this issue and further indication of
the importance being given to these crimes.
As noted at the launch in December
2014 of the Women’s Initiatives’ annual Gender Report Card on the ICC, today,
14 out of 20 ICC cases, and 4 out of 6 ongoing trials, include SGBV charges. In
the past year the ICC confirmed all SGBV charges in the Gbagbo, Blé Goudé and
Ntaganda cases and for the first time such charges were confirmed unanimously
in two of these cases. Perhaps most significantly, in the Ntaganda case, for
the first time under international criminal law, a military leader has been
indicted for acts of sexual violence committed against child soldiers within
his own militia. These new cases also mark a noticeable increase in the
percentage of total sexual and gender-based charges being confirmed by ICC
judges at the pre-trial stage, with the total jumping from 50% in 2013 to 62.8%
in 2014, meaning of the cases reaching the trial stage, 27 out of 43 total SGBV
charges sought by the ICC Prosecutor were confirmed.
While great strides have been made towards recognizng SGBV
crimes, there is no doubt that individual states, the ICC and the international
community collectively must intensify efforts to end impunity. The Women’s
Initiatives for Gender Justice, our partners, associates and members remain
dedicated to supporting this international progress as well as to the expansion
of domestic responses for accountability for conflict-related SGBV. Far from
abandoning impunity, local and global developments, including at the ICC,
provide clear signs that tolerance for gender-based violence is waning and that
a global expectation of accountability for these crimes is stronger than it has
ever been.