The International Criminal Court: an opportunity for women.
The First ICC Investigation
On July 17, 1998, the United Nations Conference of Plenipotentiaries on the Establishment of an International Criminal Court approved the ICC statute by 120 to 7, with 21 abstentions. With 94 ratifications so far, the Court is the first permanent international criminal tribunal to establish individual criminal liability international crimes such as genocide, war crimes and crimes against humanity.
For the Court to exercise its jurisdiction, the crime must have been committed in the territory of a member State or by a national of a member State. Additionally, the ICC can exercise its jurisdiction if a State that is not a party agrees, and the crime has been committed in the territory of that State or by a national of that State. (1)
The International Criminal Court Statute is commonly referred to as the Rome Statute, after the city in which it was signed. A legally binding instrument for State Parties, the Rome Statute contains legal, policy and symbolic opportunities that may help advance women's human rights. The gender perspective contained in the principles, definitions of crimes and proceedings of the ICC is a result of the immense work and sustained efforts of many women throughout the world who resisted conservative and fundamentalist attempts to marginalize women's rights year after year. (2)
On June 23, 2004, the Office of the ICC Prosecutor, headed by Dr. Luis Moreno Ocampo, announced the beginning of formal investigations into the situation in the Democratic Republic of Congo (DRC). The Office of the Prosecutor will investigate crimes under the jurisdiction of the ICC committed in DRC territory since July 1, 2002 (the date the Rome Statute entered into force).
A letter of referral was sent to the Office of the Prosecutor and signed by the republic's president, Joseph Kabila. This initiated the Congolese investigations.
Referral by a State party to the ICC is one of the three ways a case can be brought before the Court. The two other means are: referral by the UN Security Council under Chapter VII (3) or referral by the Prosecutor, who can initiate an investigation propio motu (4) based on information regarding crimes within the jurisdiction of the Court.
Human Rights Watch estimates that at least 5,000 civilians were massacred in the Ituri province in Congo between July 2002 and March 2003 when the rebel forces, some from neighboring countries, clashed with government troops. (5) The United Nations confirms that in the Congo conflict at least 50,000 people have been killed since 1999 and that 40,000 women and girls have been raped during the conflict. (6)
The reports brought to the Court focus on the rape, torture, forced displacement and illegal recruitment of child soldiers in the DRC. At least 6 million civilians have died since the 1990s as a result of the armed conflicts among rival tribes. States and international and nongovemmental organizations have reported that thousands of these deaths were from massive summary executions initiated in 2002. Thirty-one thousand people abandoned their homes to seek refuge in Burundi after new outbreaks of violence in May 2004. (7)
This precedent-setting ICC investigation must ensure that the Rome Statute and crimes against women are treated and prosecuted to the fullest extent of the law so that proper weight and relevance are given to rape and sexual violence in war situations in the future.
Why Does the ICC Matter?
The ICC provides an opportunity to guide national legal systems towards a gendered justice that translates into a culture of peace and respect for human rights.
Despite the existing international human rights norms and legal protections, girls and women are brutalized and raped by military and paramilitary forces and rebel groups during armed conflicts.
Systematic patterns of rape, torture, slavery and other gender crimes against women during wars and in times of peace occurred in Rwanda, the former Yugoslavia, Israel, Palestine, Iraq and the Congo. In the Ad Hoc Tribunals (Rwanda and Yugoslavia), multiple forms of violence against women were recognized, as was the victims' fear of reporting and revealing their stories due to lack of protection and/or for fear of becoming victims of a legal process insensitive to the inequalities of gender, ethnicity, race, etc.
The creation and implementation of the International Criminal Court is a great legal-political step in the international community's efforts to end global impunity. For the first time in the history of law, this legal instrument codifies the investigation and prosecution of gender crimes against women; it establishes the right of victims to protection and participation in some stages of the process; it recognizes their right to restitution, compensation and rehabilitation; and perhaps most importantly, it creates a new paradigm of justice within international law that symbolizes the construction of peace rather than the sanction of war.
Over the past fifty years, domestic, regional and international armed conflicts and human rights violations have left perpetrators unpunished, arms and reconstruction dealers enriched, and approximately 170 million people dead. Nevertheless, many States, including the United States, have not ratified the ICC. Instead, the U.S. government protects its imperialist behavior and interests by threatening to withdraw military assistance from States that ratify the ICC without signing a bilateral agreement promising not to extradite U.S. citizens to face charges before the Court. (8)
Recently, the United States threatened to withdraw its soldiers from UN peacekeeping missions if the Security Council did not renew the immunity granted by Resolutions 1422/02 and 1487/03. Resolution 1422, adopted in July 2002 and renewed as Resolution 1487 in June 2003, requests that the ICC not proceed with investigations or trials of officials participating in peacekeeping missions or missions authorized by the UN who are nationals of countries that have not ratified the Rome Statute. While the resolution was adopted unanimously in 2002, it requires annual renewal. In 2003 France, Germany and Syria abstained from voting. This year, the U.S. delegation did not receive the necessary votes to support a draft resolution for its "last" year exempting the military in any criminal proceeding of the Court. The resolution required a minimum nine votes from the 15 members of the Security Council. (9)
To counter the political and economic power of the countries that have not ratified the Rome Statute, incorporation of international criminal law norms into national legal systems becomes increasingly important as a means of guaranteeing a state of law, strengthening a sovereign democratic system, and opening traditional legal conceptions to gender-sensitive interpretations.
Despite the political resistance, the ICC remains a useful tool. Our legislatures' failure to adopt the standards set by the Court statute and international jurisprudence also threatens the principle of complementarity (10) and once again leaves us in the hands of national courts whose scales incline towards privileged males. A key strategy for influencing national law would be a lobbying effort to incorporate all validation, participation and protection proceedings for victims, as well as the sexual and gender crimes in the Court statute since they reflect more equitable definitions
Sexual and Gender Crimes
Sexual violence entails the violation of one's physical body and includes a sexual element, as in the case of sexual slavery, forced pregnancy, rape or sexual mutilation. Gender-based violence is related to sexual violence in that gender and sexual identity are central elements, but the parameters for defining gender-based violence much broader. For example, gender-based violence includes psychological violence or non-sexual, physical violence as in the case of forced recruitment of children into armed forces. (11) Gender crimes against women as established in the United Nations Declaration on the Elimination of Violence Against Women are: "any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life." (12)
The Rome Statute redefines how the law interprets crimes against women or what are often termed "new" sex crimes against women. (13) Many of those listed under the Rome Statue were not specifically recognized by the Military Tribunals of Nuremburg and Tokyo in 1945 and 1946 (14) nor in other international human rights treaties. Law No. 10 of the Local Council, which regulated the trials of low-level Nazis, recognized rape as a crime against humanity. However, no one was tried for rape in that tribunal. The Tokyo Tribunal used evidence of rape to support other charges of war crimes and crimes against humanity since rape was recognized as a serious violation of the laws and applicable customs in international armed conflicts. (15)
In the Tribunals for the former Yugoslavia and Rwanda in 1993 and 1995, respectively, rape was not included as a serious crime in keeping with the Geneva Conventions (16) of as a violation of the laws or customs of war. Instead, sexual violence was specifically noted as a crime against humanity. (17) For the first time, conduct such as sex crimes, the rape of women as a weapon of war, enforced pregnancy and forced prostitution were recognized as serious violations of the 1949 Geneva Conventions, of the laws and customs of war, as genocide and as crimes against humanity. Previously, crimes of sexual violence against women in war were not considered genocidal practices in any international instrument.
These tribunals, case law, pressure from the women's human rights movement and the actions of women judges conscious of gender have led to the legal recognition of rape and other forms of sexual and gender-based violence among the most serious and major of crimes (Bedont and Hall-Martinez, 1999). This was established in the Akayesu case (Rwanda) where the rape and sexual mutilation of Tutsi women was considered a form of genocide and where rape was defined as "a physical invasion of a sexual nature, committed under coercive circumstances." (18) As well as in the case of Celibici (Yugoslavia), (19) where the rapes of women were prosecuted as acts of torture and other inhumane acts.
In fact, the Trial Chamber of the Akayesu case found that when rape was used as a method to destroy or cause physical and mental damage to a group or members of group, it constituted genocide. Likewise, it was decided that rape can be used as a method of birth prevention within the said group. For example, where ethnicity is determined by the father, raping women with the intention to impregnate prevents women from giving birth to a baby that shares their identity. (20)
These tribunals marked an important milestone in international humanitarian law by setting precedents on the processing of sexual and gender violence as crimes against humanity and genocide.
On July 17, 1998, the Rome Statute made great strides as it codified as war crimes rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and any other form of sexual violence that constitutes a grave breach of the Geneva Conventions. Moreover, these same crimes and sexual abuses of comparable severity were codified as crimes against humanity. Within international humanitarian law, sexual and gender violence were treated as crimes as serious as homicide, torture, inhuman treatment, mutilation and slavery (the Ad Hoc Tribunal also issued case law to this effect).
Article 7 of the Rome Statute defines crimes against humanity as part of a pervasive or systematic attack directed against any civilian population. The definition requires that the perpetrator have knowledge that such conduct was part of a widespread or systematic attack but does not require that the perpetrator know the precise details of the plan or policy of the State. Article 8 establishes war crimes as taking place within the context of international armed conflict (or, as with serious violations of Article 3 common to the four Geneva Conventions, it does not have to be of an international nature) and being related to this conflict. Additionally, the act must be committed as part of a plan or policy or on a large scale. Sexual and gender crimes are included in both articles. The defining elements of the crimes are similar; the broader context of the crimes determines whether they are tried as crimes against humanity or war crimes. The following crimes are included: (21)
Rape is defined as the invasion of a person's physical integrity by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object of any other part of the body. The concept of "invasion" is intended to be broad enough to be gender-neutral. Additionally, the invasion must have been committed by force or by threat of force or coercion such as that caused by fear of violence, duress, detention, psychological oppression of abuse of power against such person or another person or by taking advantage of a coercive environment, or if the invasion was committed against a person incapable of giving genuine consent. It is understood that a person may be incapable of giving genuine consent if affected by natural, induced or age-related incapacity.
Sexual slavery recognizes that the perpetrators may be two or more people with a common criminal intent. The perpetrator exercises any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or all of the above, or by imposing on them a similar deprivation of liberty, such as forced work or by reducing a person to a servile condition. This conduct includes trafficking in persons, in particular of women and children. It also requires that the perpetrator caused such person or persons to engage in one or more acts of a sexual nature.
Enforced prostitution occurs when the perpetrator has caused one or more persons to engage in one of more acts of a sexual nature, including any type of sexual act such as nudity of masturbation and not limited to penetration. Prostitution as a crime against humanity is carried out by force or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or third persons, or by taking advantage of a coercive environment or a person or persons' incapacity to give genuine consent. Additionally, the perpetrator or another person must have obtained of must have expected to obtain some type of pecuniary of other advantage in exchange for or in connection to the acts of a sexual nature.
Forced pregnancy is defined as a perpetrator or third person raping a woman with the intent of impregnating. Additionally, the perpetrator must have confined or deprived the pregnant woman of liberty with the goal of preventing her from ending the pregnancy. Finally, this crime must have the intent of affecting the ethnic composition of the population (of the victim) or carrying out other grave violations of international taw. Therefore, the rapist must be from a different ethnicity than the victim.
Enforced sterilization is defined as the perpetrator depriving one or more persons of their biological reproductive capacity. Temporary birth control methods that do not remain in effect throughout the life of the person are not covered by this type of crime even if they are imposed without the consent of the victim. Furthermore, the measure must be illegitimate and against the will of the person; the conduct must have been unjustified as a medical or hospital treatment of the victim or victims concerned or carried out without their genuine consent, which does not include consent obtained through deception.
Any other form of sexual violence is defined as the perpetrator committing an act of a sexual nature against one or more persons of causing such person of persons to engage in an act of a sexual nature by force, or by threat of force of coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against the victim or third persons, of by taking advantage of a coercive environment of such person or persons' incapacity to give genuine consent. Also, such conduct must be of comparable gravity to other crimes indicated in Article 7(1)(g) of the Statute, if constituting a crime against humanity, of be of comparable gravity to a grave violation of the Geneva Conventions, if constituting a war crime.
The Commission for the Historical Clarification of Human Rights Violations and Acts of Violence which have Caused Suffering to the Population of Guatemala established that: "Sexual violence affects a nexus of rights under international protection. The right to life, to physical and psychological integrity, to security, to personal liberty, and to dignity and honor form part of the essential principles of human rights or the so-called core rights, which should be respected by States. These rights are part of the conventional law of human rights and form part of customary international law." (22)
Persecution is classified only as a crime against humanity and is defined as the perpetrator targeting a person or persons by reason of their membership in a group or collectivity or targeting the group or collectivity as such, including not only politically, racially, nationally, ethnically, culturally and religious-based persecution, but also persecution for reasons of gender. (23)
Taking Note of Case Law
The criteria for interpretation used within international humanitarian law are essential to global women's human rights activism.
For example, Article 21 guides the application and interpretation of the Statute in relation to other laws. This norm establishes that the Statute must be consistent with internationally recognized human rights frameworks that do not make distinctions based on gender, age, race, color, religion or creed, political or other opinion, national, ethnic or social origin, economic position, birth, or other condition. That is, the norm allows the judges of the Court to utilize all existing treaties and conventions that protect women's human rights and, at the same time, establish a standard of interpretation for similar crimes nationally.
Case law of the Tribunal of the former Yugoslavia has had implications for legal bodies, such as the judiciary, given that these interpretations can be nationally incorporated. The Tribunal declared that violent sexual conduct was evidence of very serious violations of customary international law.
The case known as Foca already has established that the forms of forced sexual penetration perpetrated on women with the purpose of interrogating, punishing or exercising coercion constitute torture, and sexual access to women, exercised as the right of property, constitutes a form of slavery under crimes against humanity (Viseur-Sellers, 1997). Following this line of jurisprudence, this same tribunal found Kunarac, Kovac and Vukovic guilty of torture and rape, categorized as crimes against the laws and applicable customs of international armed conflicts, and of torture, rape and slavery, categorized as crimes against humanity.
From April 1992 to February 1993, in the armed conflict between Bosnian-Serbs and Muslim Bosnians in the area of Foca, nonSerbian civilians were murdered, raped and abused as a direct result of the conflict. The three accused soldiers took active part in the systematic attack; none of their victims did. One of the specific targets of the ethnic cleansing campaign against the non-Serbian population was Muslim women who were detained in specific places, raped repeatedly and abused in multiple ways.
In the case known as Kunarac, the Appeals Chamber confirmed the judgment of the Trial Chamber and approved various considerations that are worth reviewing. (24)
The Trial Chamber considered the principal characteristic of this case to be the exercise of slavery through the sexual exploitation of women and girls. AII the controls employed served this purpose: the repeated violations of the victims' sexual integrity, through rape and other forms of sexual violence were some of the most obvious exercises of the power derived from the right of property. (25) According to the Trial Chamber, to define a form of slavery, the following indicators of slavery must be taken into account: "control of someone's movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour." (26)
As for the sexual nature of slavery, the ICC Statute on elements of crimes considers that the perpetrator, in addition to exercising the right to property over one or more persons, also must have violated the person or persons in one or more acts of a sexual nature.
Regarding consent to slavery, the Appeals Chamber accepted that the prosecutor did not have to prove lack of consent as an element of the crime because slavery is based on the exercise of the right of property and that in such circumstances, it was impossible to express consent. (27)
Regarding rape, although the appellants claimed that "[the victim's] resistance must be real throughout the duration of the sexual intercourse because otherwise it may be concluded that the alleged victim consented to the sexual intercourse," the Chamber emphasized the principle of international law, deducing from its investigation of various legislation around the world, that the violation of sexual autonomy must be penalized and that force, threats of force, or coercion negate consent. (28)
This legal principle, common to many legal systems analyzed in the Tribunal, establishes that a person has been raped when subjected to an act to which she or he has not freely consented or in which he or she has not voluntarily participated. In practice, the absence of freely given consent or of voluntary participation can be evidenced by the presence of various factors, such as force, threat of force, or advantage over a person who is incapable of resisting. (29)
The Chamber further stated that force or threat is clear evidence of lack of consent, but that force was not an element per se of rape. A restricted notion of force or threat of force could open the door to perpetrators evading their responsibility for sexual crimes committed without physical force but under coercive circumstances, for example, rape in detention. In some legislation, it is not necessary to use weapons or physical force to demonstrate force. A future threat could serve as an indicator of force to the extent that there is a reasonable possibility that the perpetrator will exercise the threat. Here we can think of the thousands of domestic violence cases involving threats and death that are generally ignored by national authorities although the possibility that they will be carried out is real. (30)
The Appeals Chamber also concluded that: "The actus reus of the crime of rape in international law is constituted by: sexual penetration, however slight: (a) of the vagina of anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) the mouth of the victim by the penis of the perpetrator; where such sexual penetration occurs without the consent of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victim's free will, assessed in the context of the surrounding circumstances. The mens rea is the intention to effect this sexual penetration and the knowledge that it occurs without the consent of the victim." (31) The Court Statute certainly incorporated many of these elements in the definition of rape although it used the much broader terminology of "invasion" for the effect of a gender-neutral term. It should be clarified that this definition of invasion includes not only the penetration of a sexual organ, but also any type of sexual abuse with objects or with parts of the body. This broadness of concept is crucial for much Latin American legislation where rape is still defined as "carnal access," reducing it to penetration with the male sexual organ.
Rape as an Act of Torture
The Appeals Chamber considered that torture "is constituted by an actor an omission giving rise to 'severe pain or suffering, whether physical or mental,' but there are no more specific requirements which allow an exhaustive classification and enumeration of acts which may constitute torture. Existing case-law has not determined the absolute degree of pain required for an act to amount to torture." (32)
The Trial Chamber has not accepted the appellants' argument to the effect that suffering must be visible, rather it determined that some acts establish per se the suffering of the victims and that rape is one of those acts. The Chamber went further and took as fact the suffering even without a medical certificate, establishing that sexual violence created serious pain and suffering, whether physical or mental. That is, once rape is proven, the severe suffering and pain of torture also are proven because rape implicitly contains that pain and suffering. The Chamber characterized rape as an act of torture in this way. (33)
At the procedural level, this concept of severe pain and suffering implicit in sexual violence guided the Prosecutor to take facts as proven without a medical certificate. Likewise, the Prosecutor's focus influenced the categorization of the crimes as sexual crimes as well as the description of sexual crimes as torture or slavery. The Tribunal's credence of the women's testimony so many years after the acts occurred could serve as a model for national tribunals, which often tend to discount the testimony of women and require proofs often impossible to obtain due to the private nature of the crimes.
The definition in the Rome Statute of the crime of torture as a war crime or crime against humanity differs from that in the Convention Against Torture as it does not require that the torture be committed for a particular reason, such as to obtain a confession. The Statute also does not require that torture be committed by state officials; it also can be committed by non-state perpetrators, a phenomena that disproportionately affects women. (34) This type of interpretation could provide standing in national courts to assert that other types of violent acts committed against women, like domestic violence or incest, for example, constitute torture.
The United Nations Special Rapporteur on Torture also has listed forms of sexual violence as methods of torture. (35) The Inter-American Commission on Human Rights (IACHR) and the European Court of Human Rights already have established that torture can be committed through rape. One of the cases that the Trial Chamber of the Tribunal on Yugoslavia took into account in its decision was Fernando y Raquel Mejia vs. Peru from the IACHR that considered rape to be torture. The case Mejia vs. Peru addressed the rape of a woman by Peruvian soldiers while they kidnapped her husband . (36)
This case law and the implementation of the Court Statute may have very useful implications for our legal and judiciary systems. The Kunarac case not only clarifies legal concepts such as consent, force or threat of force, the various forms of control, and sexual autonomy in rape, but also serves as a paradigm for diverse interpretations that can be made regarding other types of sexual and gender violence against women.
The legal precedents set by the case law of these international tribunals are part of international humanitarian and human rights law. They can be valuable additions to domestic legal systems. Adopting definitions that reflect the highest standards of international law, whether from the ICC Statute or from any other international instrument, and using the ICC may be a strategic avenue for strengthening and modernizing criminal legislation in individual countries.
Gender-Sensitive Legal Procedures
The procedural dimension of these legislations effectively defines the extent to which gender-based violence is being recognized. For example, Article 68 of the Rome Statute addresses measures to protect security, physical and psychological well-being, victims and witnesses' dignity and privacy, particularly in cases of sexual or gender violence.
Rule 85 of the Rules of Proceedings and Evidence define victims as natural persons who have suffered harm as a consequence of a crime under the Court's jurisdiction. This includes organizations or institutions dedicated to religious worship, education, arts, science or philanthropy that have suffered direct harm to their assets (monuments, hospitals, places or objects that have humanitarian ends).
Rule 86 specifies that the Court's orders will take into account the needs of all victims and witnesses, particularly children, elderly persons, people with disabilities, and victims of sexual and gender violence.
Rule 70 establishes that a victim's consent in an act of sexual violence may not be inferred by the victim's words or actions when force, the threat of force, coercion or abuse of a coercive environment have undermined the victim's ability to give voluntary and genuine consent; when the victim is incapable of giving genuine consent; or from the victim's silence or lack of resistance to the act of sexual violence. Additionally, the credibility, honorability or sexual availability of the victim or witness cannot be inferred by the victim's previous or subsequent sexual conduct.
In accordance with these principles and in relation to Article 69 of the Statute on the legality and admissibility of evidence before the ICC, the Court will not admit evidence that violates this principle. Rule 71 additionally establishes that "in light of the definition and nature of the crimes within the jurisdiction of the Court, and subject to article 69, paragraph 4, a Chamber shall not admit evidence of the prior or subsequent sexual conduct of a victim or witness." (37) This type of protection is necessary due to the tendency to relate the victim's prior or subsequent sexual conduct to the alleged facts as a way of absolving the perpetrator of responsibility.
Protection measures in conformity with Rule 87 include holding closed hearings, the presentation of evidence via electronic or other means, and the Prosecutor's capacity to refuse to divulge or present evidence or information if there exists a grave danger to the security of a witness or a witness's family. The privacy of a victim or witness is also protected by controlling the method of questioning with the goal of avoiding harassment and intimidation, particularly when addressing victims of sexual violence. Likewise, the Court is empowered to take into account the victims' opinions and observations if their personal interests are affected, above all in the decision-making phase of the Preliminary Questions Chamber to authorize an investigation and decide reparations. This can be considered an advance in criminal procedure because the norm pursues justice by trying to balance the rights of the accused and the rights of victims.
The Statute also provides for a Victims and Witnesses Unit within the Registrar of the Court to advise and assist the Prosecutor and the Court on adequate measures of protection and security, above all when witnesses are in danger on account of their testimony. The Unit must include experts in trauma from sexual violence on its staff.
The Court also has the power to determine the magnitude of the harm, losses or damages caused to the victims and to order the payment of reparations to the victims by those convicted. A trust fund to compensate victims and their families provides for such a situation.
The Statute provides for a balanced representation of male and female judges and jurists specializing in issues such as violence against women and children (art. 36). The ICC has seven female judges from diverse regions. Likewise, the Prosecutor has the power to name special advisors on issues like sexual violence, gender-based violence and violence against children, and the Registrar has the option to hire special personnel to attend to victims of trauma due to sexual violence.
Implementing the ICC (38)
For the Court to be fully operational, States Parties that have ratified it must adopt legislative measures in full cooperation with the Court. The benefits of national implementation are two-fold: on the one hand, it requires States Parties to cooperate with the Court, and it allows them to exercise local jurisdiction over crimes over which the Court will have complementary jurisdiction.
As the Court does not have a police force or prisons, it relies on national bodies for law enforcement services and facilities. Therefore, each State must adopt legislation that prohibits any effort to impede the ICC's administration of justice including obtaining evidence, executing search warrants, search and seizure, making arrests, immunity for ICC officials, or enforcement of sentences.
Given the complementary character of the ICC, States will have the primary responsibility to investigate and judge the presumed crimes defined in the Rome Statute. On implementing complementarity, States Parties legislate on accountability of command, individual criminal liability, execution of sentences and immunities and define in their domestic legislation each crime under the ICC's complementary jurisdiction. However, States are not absolved in this way from their obligations to address crimes codified in other international instruments.
The Court only has jurisdiction over cases that have occurred under certain specific circumstances. These circumstances include a State's acceptance of the ICC's jurisdiction, referral from the United Nations Security Council, and a State Party that is genuinely unable or lacks the willingness to exercise its domestic jurisdiction.
Finally, the Court can transmit a request for a person's detention or surrender to any State in whose territory that person may be found and request the cooperation of that State. In accordance with Article 89(1), State Parties are obligated to comply with such requests issued by the Court. This cooperation must be effected in accordance with the dispositions of the Statute and local laws. The concept of surrender is distinct from extradition since the former pertains to the transferal of a citizen from a State to the ICC while the latter refers to the transferal of a citizen from one State to another.
In the case of concurrent requests for extradition and surrender to a State Party by another State and by the Court, the request of the Court will have priority if the case has been admitted and if the State that has also made a request is a State Party. If the State making the request is not a State Party, the Court will have priority if the case has been admitted, unless the State to which it has made the request is under an international obligation to extradite the person requested by the first State.
The ICC may contribute to the creation of a state of functional law that provides justice to the thousands of victims of horrific crimes committed globally. It may help to bring about dialogue, tolerance, solidarity and the development of a culture of peace and respect for human rights. Its implementation is the responsibility of each and everyone one of us.
Ensure this legislation is being implemented in your own countries, and monitor the work of the ICC to ensure that the sexual and gender crimes and procedures are being implemented within the ICC and in their own legislations.
Use the ICC as a tool for building a culture of peace through justice.
(1.) See Article 12 (2) and (3) of the ICC Statute, which establishes the principle of territoriality.
(2.) Fundamentalist forces such as the Vatican, U.S. and Canadian rightwing NGOs and similar religious/political groups.
(3.) Chapter VII includes articles 39 to 51 of the United Nations charter. It is the chapter related to the action that the Security Council must take with respect to threats to the peace, breaches of the peace, and acts of aggression in order to maintain or restore international peace and security. Available online at http://www.un.org/aboutun/charter/
(4.) Propio motu means "by his/her own initiative, by her/his own will, from his/her autonomy," not needing any referral from any country or the Security Council.
(5.) See http://www.hrw.org.
(6.) For more information, see http://www. iccnow.org.
(7.) See footnote 3.
(8.) For information on the progress of ratifications, activities and everything related to the Criminal Court, see the Coalition for the International Criminal Court website, http:// www.iccnow.org.
(9.) For more information on Security Council Resolutions 1422 and 1487, see http:// www.iccnow.org/espanol/euaycpi.htm.
(10.) In accordance with the principle, State Parties have the primary obligation to try these crimes. The ICC will exercise its jurisdiction over crimes of genocide, crimes against humanity and war crimes when the competent State Parties cannot or do not try these crimes in accordance with Article 17.
(11.) Documents from the Women's Caucus for Gender Justice created during negotiations of the International Criminal Court Statute in the United Nations.
(12.) Declaration on the Elimination of Violence Against Women, A/RES/48/104 (February 23, 1994) and Beijing Platform for Action, 1995.
(13.) According to Human Rights Watch, "Although none of these acts are 'new' crimes, the Rome Statute is the first treaty to contain such an extensive list of crimes of sexual violence. For example, article 4(e) of the Statute of the ICTR prohibits 'rape, enforced prostitution, and any form of indecent assault.' [These crimes] are prohibited under Geneva Convention IV article 27, and Protocol I, article 76(1), but are not expressly listed as grave breaches. Article 32 of the IV Geneva Convention prohibits any 'measure of brutality whether applied by civilian or military agents.' Protocol II, article 4(2)(e), prohibits 'outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution, and any form of indecent assault.' Article 4(2)(f) prohibits 'slavery and the slave trade in all their forms.' Rape was prosecuted as a war crime by the International Military Tribunal for the Far East in the Tokyo trials." Human Rights Watch, "Making the International Criminal Court Work, A Handbook for Implementing the Rome Statute," vol. 13, no. 4(G) September 2001.
(14.) Jurisdiction in the Nuremberg and Tokyo Military Tribunals included physical persons as subjects of international criminal liability and not States, regardless of whether they planned, instigated, ordered or executed any of the crimes under the competence of either tribunal.
(15.) See footnote 5 in the article written by Jennifer Green et al., "Affecting the Rules for the Prosecution of Rape and other Gender-based Violence before the International Tribunal for Former Yugoslavia: A Feminist Proposal and Critique," Hastings Women's Law Journal, University of California, vol. 5, no. 2, Summer 1994.
(16.) Under Article 147 of the IV Geneva Convention, the doctrine and case law that form part of customary international law have interpreted rape as torture or as the deliberate infliction of great suffering that seriously threatens physical integrity and health.
(17.) Statute of the Tribunal of Yugoslavia, art. 5 (g); Statute of the Tribunal of Rwanda, art. 2 (g).
(18.) Prosecutor v. Akayesu, Case ICTR-96-4T, Resolution, 2 Sept 1998, para. 597. This definition of the elements of rape was adopted by the Trial Chamber of the TPAY in Prosecutor v. Delalic et al., Case IT-96-21-T, Resolution, 16 Nov. 1998, paras. 478-9.
(19.) Celibici, Case. N. IT-96-21 (16 Nov. 1998).
(20.) Amnesty International, "The International Criminal Court", Fact sheet 7, Ensuring Justice for Women, 4-08-00.
(21.) For the elements of gender crimes, see Elements of Crimes, ICC Statute at http:// www.un.org/law/icc/prepcomm/report/ prepreportdocs.htm and the book Association International de Droit Penal, "La Corte Penal Internacional, Ratificacion y Aplicacion por las Legislaciones Nacionales" (The International Criminal Court, Ratification and Application by National Legislations), Revue Internationale de Droit Penale, 71 eme annee nouvelle serie, 1 er et 2eme, trimestres 2000.
(22.) Established in the Guatemalan peace process framework through the agreement signed in Oslo (Norway) on June 23, 1994. Report from the United Nations Commission of the Secretary-General, at http://shr.aaas. org/guatemala/ceh/mds/spanish/toc.html (English version http://shr.aaas.org/guatemala/ ceh/report/english/toc.html).
(23.) International Criminal Court Statute, A/ CONF.183/9, July 17, 1998, Rome, Italy. See sexual crimes in Article 7(g), Article 8 (b) (xxii), 8(e) (vi) of the Statute.
(24.) These considerations can be found on the United Nations website, International Tribunals section. Each one has an assigned paragraph to which I refer in each note, but all are from Trial Chamber II, 22/2/01, IT-96-23, Press Release N. 566 and Appeals Chamber, 12/6/ 02, IT-96-23/1, Press Release. N. 679.
(25.) Para. 554, Trial Chamber.
(26.) Para. 119, Appeals Chamber judgment.
(27.) Para. 120, Appeals Chamber judgment.
(28.) Para. 125 and 126, Appeals Chamber judgment.
(29.) Para. 387, Trial Chamber judgment.
(30.) Para. 129, Trial Chamber judgment.
(31.) Para. 127, Appeals Chamber judgment.
(32.) Para. 149, Appeals Chamber judgment.
(33.) Para. 205, Trial Charnber judgment.
(34.) In Guatemala for example, the Truth Commission indicated that the use of sexual violence, especially during the counterinsurgency war of the 1980s, was systematic, generalized and evident in different stages of the campaign. Paramilitary groups of armed civilians loyal to the army also committed these types of humiliations.
(35.) Para. 181, Appeals Chamber judgment. See also Human Rights Commission, session 48, Summary Record of 21st Meeting, February 11, 1992, Doc. E/CN.4/1992/SR.21, February 21, 1992, para. 35 which states: "Since it was clear that rape or other forms of sexual assault against women in detention were a particularly ignominious violation of the inherent dignity and the right to physical integrity of the human being, they accordingly constituted an act of torture." Other Chambers of this Tribunal also have noted that in some circumstances rape could constitute an act of torture: Furundzija Trial Judgment, paras. 163 and 171 and Celebici Trial Judgment, paras. 475-493.
(36.) Para. 182, Appeals Chamber judgment.
(37.) Rules of procedures and evidence, International Criminal Court, http://www.icc-cpi.int/ library/basicdocuments/rules(e).pdf
(38.) See reference in footnote 3.
Coalition for the International Criminal Court http://www.iccnow.org/.
The CICC has more than 2,000 NGO members in over 150 countries. The role of the CICC is to facilitate and coordinate the work of its members and serve as the principal source of information on the ICC and how it links governments, ICC officials, international organizations, academics and members of civil society. The many actions developed by the CICC include: calling attention to the importance of the ICC and the Rome Statute; facilitating participation of NGOs in the ICC process; promoting universal acceptance and ratification of the Statute, including the adoption of national legislation; and strengthening the international network of the CICC.
Women's Initiatives for Gender Justice http://www.iccwomen.org/.
Formerly the Women's Caucus for Gender Justice, this network of individuals and groups is committed to strengthening advocacy for women's human rights. Women's Initiatives for Gender Justice promotes women's capacity to use the ICC and other international mechanisms that serve as access to different systems of justice.
No Peace Without Justice Committee for the International Criminal Court http://www.npwj.org/
No Peace Without Justice is an international committee of parliamentarians, mayors and citizens whose objective is the establishment of an effective system of international justice. It promotes the development and reform of existing institutions, supports the Ad Hoc Tribunals, ensures that human rights are enforced in member States of the United Nations, and campaigns for the effectiveness of the International Criminal Court and for the eradication of female genital mutilation.
Rights & Democracy http://www.ich rdd.ca/
Formerly the International Centre for Human Rights and Democratic Development, this organization was created by Canada's Parliament in 1988 as a non-partisan initiative with an international mandate. Rights & Democracy is a unique institution that acts as a link between nongovernmental organizations and governments to encourage dialogue between civil society and the State. Although its mandate is very broad, Rights & Democracy focuses on four issues: democratic development, women's rights, globalization and human rights, and the rights of indigenous peoples.
Asociacion Pro Derechos Humanos (Association for Human Rights) http://www.aprodeh.org.pe/
A collective of individuals committed to the struggle for full implementation of human rights in Peru, APRODEH began in 1983 as an initiative to support parliamentary work in response to the growing violation of human rights in the context of the domestic war. The group has developed its own profile over the years and broadened its vision of human rights issues. APRODEH's work to report violations as well as its role in discussing and proposing alternatives to violence has permitted the group to gain recognition among diverse sectors of the population and in national and international public opinion.
Amnesty International http://web.amnesty.org/
Amnesty International works throughout the world to fight human rights abuses and to change the laws that legitimize such violence. Over the four decades of its existence, Amnesty has contributed to the liberation of thousands of prisoners of conscience, the protection of many persons threatened with torture or murder, the abolition of the death penalty in many countries, and the creation of the International Criminal Court. Members of Amnesty International throughout the world have pressured their governments to ratify the Rome Statute of the International Criminal Court since its adoption on July 17, 1998.
International Commission of Jurists (ICJ) http://www.icj.org/
The International Commission of Jurists was founded in Berlin in 1952 and is comprised of sixty eminent jurists representing the different legal systems of the world. Characterized by its impartial, objective and authoritative legal approach to the protection and promotion of human rights through the rule of law, the ICJ dedicates its efforts to guaranteeing the primacy, coherence and implementation of international law and principles that advance human rights. It is run by an International Secretariat based in Geneva. The International Secretariat benefits from a network of autonomous national sections and affiliated organizations in every continent.
Parliamentarians for Global Action (PGA) http://www.pgaction.org/
Parliamentarians for Global Action is a network of 1,350 members of parliament from 110 legislatures who promote democracy, peace, justice and development throughout the world.
Human Rights Watch http://www.hrw.org/
Human Rights Watch constantly investigates violations of human rights in more than 70 countries. Its reputation for opportune and reliable revelations has made it an essential source of information for individuals and institutions interested in human rights. This organization examines the human rights practices of governments of any political tendency or ethnic or religious character and utilizes international humanitarian law to evaluate the conduct of parties in domestic and international armed conflicts.
RELATED ARTICLE: The advantages and disadvantages of the ICC for the Women's Movement.
* The ICC's jurisdiction is not limited geographically or temporally.
* Investigation of cases must respect the needs, interests and circumstances of the victims and the rights of the accused.
* The Prosecutor has the authority to take measures to protect the victim and witnesses as well as to maintain confidentiality of information.
* Victims are allowed to participate in various stages of the process.
* Evidence can be presented on camera, electronically or by other means when minors or adult victims of sexual violence are involved.
* The ICC applies individual criminal liability without distinction, whether the accused is a Head of State of Government, a representative of parliament or a military commander (art. 25 and 28). Official capacity is not grounds for reducing the sentence (art. 27). A military commander is criminally liable for the crimes committed by forces under his or her command or control (art. 28). Criminal responsibility also applies when the military commander knew or should have known that his or her forces were committing or about to commit such crimes and failed to take all necessary measures to prevent or repress their commission (art. 28). The fact that a crime was committed by a person under the orders of a superior generally does not relieve that person of criminal responsibility.
* The Prosecutor is independent and separate from the ICC. The independence of the ICC is also ensured by the procedural rules contained in the Statute. For example, the Prosecutor can initiate investigations on his or her own initiative but cannot proceed without the authorization of the Pre-Trial Chamber judges. Once a case is referred to the ICC, neither the States nor the Security Council can interfere in the judicial functions of the Court or influence its procedures or the decisions that it makes, with one exception discussed under "Disadvantages."
* There is a Victims Trust Fund.
* The Statute does not allow its ratification with reservations or declarations, explanations or interpretations.
* The obligation on States to cooperate strengthens judicial systems as well as national legal systems because they must be adapted to international standards.
* The Statute does not include the death penalty.
* There are procedural and substantive advances relating to women's rights.
* In summary, the ICC is a judicial system characterized by political independence, impartiality, equality between the accused and the victims, and the principle of complementarity, which strengthens national judicial systems and represents a legal symbol of peace-building for the international community.
* Cases before the ICC cannot be referred to it by a human rights organization although these organizations can send information to the Prosecutor.
* Multinational corporations or other legal persons cannot by tried.
* Although the perpetrator's actions can be attributed to a State, an order for reparation cannot be made against the State.
* Victim participation in the process is not obligatory but left to the discretion of the Court.
* The Security Council can request a suspension of ICC proceedings for a period of 12 months if it considers that the trial constitutes a threat to peace and security in accordance with Chapter VII of the UN Charter (art. 16) by a vote by the majority of the 15 members of the Security Council including the five permanent members; if only one permanent member opposes the suspension of the trial, the Court can continue its investigations.
* The concept of victim does not include other entities, such as human rights organizations.
* State Parties can refuse to cooperate with the Court if disclosing documents could compromise the national security interests of the State.
* States that are not party to the Statute do not have any obligation to cooperate with the Court.
* States can apply their own sentences, which mayor may not include the death penalty.
Source: Ana Elena Obando Mendoza, Consultoria sobre la Corte Penal Internacional, CEDAW y su Protocolo Opcional San Jose, Costa Rica: Instituto Interamericano de Derechos Humanos, IIDH, 2002.
The author is a feminist lawyer from Costa Rica. She has a master's degree in Gender and Justice Studies and has been an activist for women's human rights for 19 years. She serves as a consultant for various national and international agencies. This article was originally published on the Women's Human Rights Net, Whrnet, http:// www.whrnet.org, in August 2004.
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|Author:||Obando, Ana Elena|
|Publication:||Women's Health Journal|
|Date:||Jan 1, 2005|
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