Gender Justice and the International Criminal Court

06/13/2013 09:57 am ET | Updated Aug 13, 2013

On June 24 the United Nations Security Council, at the initiative of the United Kingdom, will hold an open debate to discuss ending impunity for crimes of sexual violence in conflict. This is not the first time that the Council has addressed the issue of sexual violence. The discussion builds upon the Council's previous decisions that show its resolve to deal with this issue.

Gone are the times when prohibitions against sexual violence were based on the idea that women deserved protection because they were the property of men. By now, rape and sexual violence have been long considered as crimes against women themselves. Although the main targets are women, it is now recognized that sexual violence is at times also committed against men.

Gender crimes have historically been a feature of armed conflicts but it is perhaps difficult to imagine that they are still an enduring part of conflicts well into the twenty-first century. The facts, however, are gruesome. Sexual violence is still being used as a tactic of war. Within the last 30 years, sexual violence has been reported in over 50 countries that have experienced conflict. Sexual violence is rampant in the Democratic Republic of the Congo. In some parts of the country more than 20 percent of women report having experienced sexual violence. It is estimated that between 20,000 and 50,000 women were raped during the war in Bosnia and Herzegovina in the early 1990s. It is also estimated that between 50,000 and 64,000 internally displaced women in Sierra Leone have experienced sexual violence at the hands of armed combatants.

And then they asked me to lie down on my bed and I said, 'I beg your pardon?' I didn't want to. ... He pointed his weapon at me. He threw me on the bed and pointed the weapon at my neck. He pulled out a small knife, tore off my shorts and my underwear and threw it away, then he forcibly spread my legs and then he slept with me. ... When the one who had been sleeping with me finished, he stood up and left. Another replaced him and slept with me. After him, there was another one who slept with me.

Testimonies like this one, from the trial of Jean-Pierre Bemba at the ICC in 2010, give an idea of what people have to suffer, on a routine basis, in situations of conflict.

The International Criminal Court is at the forefront of gender justice. The Rome Statute, the founding instrument of the International Criminal Court, contains a number of important innovations designed to ensure that sexual and gender based crimes are addressed. The Statute is a progressive instrument that goes far beyond the legal instruments that preceded it and builds on the experience of ad hoc tribunals that were established by the Security Council in the nineties. The Rome Statute criminalizes sexual and gender violence as war crimes and crimes against humanity. Accordingly, the definitions of war crimes and crimes against humanity include rape, sexual slavery (including trafficking of women), enforced prostitution, forced pregnancy, enforced sterilization, other forms of grave sexual violence, and persecution on account of gender.

In practice, the Court has proven itself to be sensitive to gender crimes. Charges for gender-based crimes have been brought in cases arising from at least six of the eight situations: Uganda, the Democratic Republic of the Congo, the Central African Republic, Darfur (Sudan), Kenya and Cȏte d'Ivoire. Charges of gender-based crimes have been brought in 13 of the 18 cases currently before the ICC, a proportion of over 70 percent.

However, bringing perpetrators to justice is just one aspect of the whole picture. Several critical factors make sexual violence in conflict resistant to eradication. Women's subordinate status in society in peacetime puts them at increased risk for sexual violence in times of war. Women are often denied the right to equality before the law. As a result, in many countries, rape goes unreported. When it is reported, prosecutions are rarely successful. Sexual violence is the only crime for which the community's reaction is often to stigmatize the victim rather than prosecute the perpetrator.

It is clear that the ICC has shown that it is serious about addressing sexual violence and will continue to do so. The Prosecutor gives priority to sexual and gender-based crimes from the very stage of preliminary examinations. Nevertheless, there are important challenges that will have to be addressed:

First, it is of utmost importance that the Rome Statute's gender sensitivity is translated into national prosecutions to make sure that national proceedings take into account the gender dimension of atrocity crimes to the same extent as the Rome Statute does. National prosecutors and judges must also have the capacity and the expertise to properly prosecute and try individuals for gender crimes.

The second challenge is cooperation with the Court. The cooperation of States is central to every aspect of the Court's work, including in ensuring justice for gender crimes.

The Trust Fund for Victims established under the Rome Statute has been doing serious work in countries where the court is conducting investigations to alleviate the suffering of victims of crimes. Among other activities, it is also providing assistance to the victims of rape and to children born as a result of rapes. In replenishing the Fund, the United Kingdom, together with Estonia, Finland and Norway, have been paying special attention to the needs of victims of sexual violence who are very often stigmatized by their own communities.

The fight against gender-based crimes has gained new support and new traction in the international community, but there is still much work to do. As we move into the second decade of the existence of the ICC, we should take advantage of this momentum to make further advances towards ending the culture of impunity for gender-based crimes.