Strengthening Sexual Violence Prosecutions at the ICC
Sexual violence has always acted as an important tool in conflicts of all kinds since time immemorial, often serving as an instrument of humiliation, degradation, and torture of people. The magnitude of such violence taking place in the last few decades goes on to show how prevalent it is, even now. A recent example of this is widespread acts of sexual violence taking place in the Tigray conflict in Ethiopia. In this context, it, therefore, becomes important to address the issues of sexual violence in international law and specifically under international criminal law, where individual responsibility is attributed to the accused.
Rape jurisprudence at the international criminal law plane is remarkable for its progressive evolution. A great role that has been played in this regard, has been the work of the international ad hoc tribunals along with the Rome Statute of the International Criminal Court (“ICC”) coming into force. Despite the codification of sex crimes at the international level, problems still exist with respect to prosecutions of these crimes at the ICC. Some of the reasons for the same include the gender-biased prosecution system, investigation issues, and survivors being unable to come forward. The present article seeks to explore some of the ways through which the bad track record of the ICC with respect to sexual violence can be improved.
The ICC selection procedure for judges ensures three kinds of representation- a. equitable geographic representation, b. in terms of the major legal systems (criminal law and procedure or international law), and c. gender diversity. It has been observed that diversity helps increase the legitimacy of a court due to inclusivity. For example, in a study of the International Criminal Tribunal for former Yugoslavia (“ICTY”) sentencing practices, it was seen that the ICTY panels with female judges imposed harsher punishments on those defendants who had assaulted women, while male judges would enforce more stringent sanctions on people who assaulted men. Another example that can be given here is that of Judge Navi Pillay, the only female judge on the International Criminal Tribunal for Rwanda (“ICTR”) panel that ruled the landmark Jean-Paul Akayesu’s case,[i] who is given the credit for “taking the initiative to question witnesses about evidence of sexual violence.” This case, besides other counts, found Akayesu guilty of a crime against humanity and genocide on account of rape.
It is commendable that ICC has had a great female representation on the bench in the past and the need is to continue this trend, for all organs and offices of the court as well. It can be safely stated that female judges would be more sensitive to the needs of female sexual survivors and this would also go a long way in enhancing the cooperation of these victims. It is also to be remembered that a non-inclusive characteristic of a court like this, in the context of female representation, also invokes a feminist critique. It is therefore extremely essential to have more gender representation on the ICC benches which should include not just women, but the LGBTQIA community as well. The concerns of the latter community, with respect to sexual violence, have especially, not been brought out that well by the ICC. Take, for instance, Article 7(3) of the Rome Statute, which has defined sex to include only ‘males and females. While some harshly criticize this binary approach, others have maintained that the ICC will ensure gender justice and interpret the term widely.
To ensure fair representation at the ICC, the author suggests including mandatory reserved seats for the underrepresented gender communities in all the ICC organs having gender-neutral definitions in the international law statutes and other documents.
One of the important bodies or organs that has played a huge role in addressing gender-based violence and sexual violence in international criminal law is the Truth Commission (“TC”). The TCs established in the aftermath of conflict in various parts of the world has left behind a great legacy in rape and sexual violence jurisprudence. For example, the TC reports of Columbia, Guatemala, and Peru have done commendable work in offering victim support services and documenting the rampant use of sexual violence in the armed conflicts that occurred there. Peru’s report went on to demonstrate elaborately how sexual violence during the country’s armed conflict is an instance of a crime against humanity. In Liberia, domestic interventions were made in the state’s statutory rape and inheritance laws after the TC identified the shortcomings in these legislations. Similarly, in Sierra Leone, recommendations were made on the need to amend the existing laws in the country due to TC findings there.
Despite some of these advances that TCs have made, it is to be noted that criticisms also exist regarding the utility of TCs and the lack of a gendered approach seen at times. Despite certain flaws, the author believes that TCs cannot be dismissed as a whole as these help sexual violence victims in reconciliation and healing. Therefore, the need is to improve the working of TCs and also understand it as an important component of the justice mechanism in the international criminal law sphere. To this end, the author proposes TCs as a complementary organ at the ICC to better address gender and sexual violence crimes especially. This idea of a permanent International Truth Commission is something that lawmakers should definitely explore.
Outlining Few Procedural Concerns
The Rome Statute and the ICC Rules of Procedure and Evidence (“ICC Rules”) contain a number of relevant provisions that address victim protection. These need to be strengthened even further, by using interpretations favoring the victims such as a policy-oriented approach. To take an example, one of the areas where concern has been raised is with respect to the anonymity of the victims and their families. The relevant provision here is Rule 81(4) of the ICC Rules. It specifically gives the right of non-disclosure of identity to witnesses, victims, and members of their families before the commencement of trial. The author, in line with a previous commentator, believes that this particular rule should be amended to protect the identity of the persons concerned throughout the trial. Victim protection measures such as this help the women come forward and testify and can subsequently help the court to investigate, thereby leading to higher convictions in these cases.
Another challenge when it comes to prosecuting sexual violence at the ICC has been that of, ‘high evidentiary standard’ often demanded in these cases. A study on this topic has been able to demonstrate the reluctance of tribunals to prosecute such crimes in the absence of direct or more specific evidence. Therefore, thorough investigations and meticulous analysis of all evidence, especially circumstantial evidence, and the understanding of the broader context of sexual violence in armed conflict are quintessential. In addition to this, the stage of collection of evidence is extremely crucial and the Office of the Prosecutor (“OTP”) should make sure to get on with the investigations as soon as a case is brought to the court. The author also suggests training judges to be more sensitive in cases concerning sexual and gender violence, so that interpretations of the law are made keeping in mind the nature and context of the case and the victims’ needs.
United Nations Secretary-General Kofi Annan described the International Criminal Court as “a gift of hope to future generations and a giant step forward in the march towards universal human rights and the rule of law” when it was ratified in 2002. To realize the full potential of this aspiration, it is the need of the hour to effectively address the various deficiencies in the present system. In furtherance of the same, the present article has touched upon the need for strengthening the prosecution of sexual violence crimes at the ICC. It is to be noted that in the absence of the certainty of prosecution, offenders can take advantage of a conflict situation and go about committing heinous crimes without the fear of punishment. The few solutions described above are only the starting points of this very important discussion. Along with this, the author is of the opinion that a greater awareness of sexual violence in international law can help in educating people about their rights and remedies, especially in regions of conflict. Lastly, there is scope for more scholarly research on issues such as the definition of gender in the Rome Statute, sexual violence against men and the LGBTQIA community, and reparations for victims of sexual violence at the ICC.
[i] The Prosecutor v. Jean-Paul Akayesu, Case no. ICTR-96-4-T.
Ranu Tiwari is a 5th-year law student at Maharashtra National Law University, Nagpur. Her areas of interest include Human Rights Law, International Law and Constitutional Law.
Image: Credits to ICC