The long road to gender justice

In 1995, in response to the horrors of the conflicts in Rwanda and the former Yugoslavia, the international community was compelled to negotiate a treaty and establish a permanent court with the potential to try individuals anywhere in the world for war crimes, crimes against humanity and genocide.  Seizing this opportunity, the Women’s Caucus for Gender Justice and other gender equality advocates participated in the negotiations to draft the Rome Statute of the International Criminal Court (ICC) to ensure that principles of gender justice were infused within this landmark treaty. This work of the Caucus and others built upon the global policy advances for women’s rights during the 1990s and the momentum of the early jurisprudence and trials underway at the ad hoc tribunals.  The outcome of these efforts was a statute with the most comprehensive articulation in history of acts of sexual and gender-based crimes recognized under international humanitarian and criminal law.

The ICC Rome Statute was revolutionary in many respects, including the codification of rape and many other forms of sexual violence as war crimes, crimes against humanity, and in some circumstances, as genocide. The Statute also ensures the right of victims to apply to participate in the legal proceedings at the ICC, providing promising entry points for female victims to participate in the justice process.

Institutional requirements for gender and geographical representation were also incorporated within the Statute as pre-emptive benchmarks to assist the Court in avoiding bias in its recruitment of staff and election of officials, ensuring that the talent and expertise of nationals, both female and male, from member states of all regions contribute to the success of the Court.

Since 2004, one of the priorities of the Women’s Initiative’s for Gender Justice has been to monitor and advocate for the implementation of the gender and geographical requirements within the Statute in the appointment of staff and the election of judges and the Prosecutor. These efforts and the work of those within the Court and states parties sensitised to gender and geographical issues have helped to ensure a stronger representation of women in mid-to-senior level posts and more women elected as judges when compared to the ad hoc tribunals.

Advocates are continuing to assert a stake in shaping international gender justice and contributing to the design of a new global justice system that will effectively address sexual and gender-based crimes and other forms of brutality pervasive in conflict situations.

Other justice leaders are also taking up this issue.

Upon assuming office in June 2012, ICC Prosecutor Fatou Bensouda prioritized the development of a policy on sexual and gender-based crimes to improve the investigatory and prosecutorial record of the Court and to augment the efforts of the Office of the Prosecutor (OTP) to meet its obligations under the Rome Statute.

Historically, jurisprudential progress on gender justice at the ad hoc tribunals hinged upon a few individuals within the judicial system being in the right place at the right time, leading to erratic and ultimately unpredictable jurisprudence.

Drawing on these lessons and in recognition that accountability for acts of sexual violence continues to be exceptional and elusive compared to the scale of their commission, the ICC prioritized a policy-based approach, emphasizing institutional responsibility, organizational methodologies and collective competence as necessary to achieve meaningful and sustainable progress on these issues.

Working closely with the Special Advisor on Gender, the OTP designed a process inclusive of internal consultations with staff in the development of the policy. Once drafted, the OTP also engaged external stakeholders including states parties, academics, practitioners, regional entities and NGOs to provide feedback and commentary to further refine the policy. The imprint of civil society is firmly embedded within the overarching principles and specific operational strategies contained within the Policy.

Important progress has already been noted at the ICC, with a 13% increase in the number of charges for sexual and gender-based crimes confirmed within the last 12 months. In the past year, all charges for sexual violence brought by the OTP in 2014 were confirmed.

These early indications are highly encouraging and signal a move in the right direction. The Policy is intended to support the OTP’s ability to not only secure charges and successful prosecutions, but to also be able to sustain their performance over time and across cases.

Looking ahead, some of the gender justice priorities we hope to see addressed during the second decade of the Court’s work include: more thorough and consistent integration of a gender analysis within cases; better quality jurisprudence emerging from the judiciary and more attention to engendering legal concepts; and an evolution in the static legal reasoning surrounding the liability of remote perpetrators charged with sexual and gender-based crimes.

This post is part of our When hope and history rhyme blog series, commemorating the 20th anniversary of the Coalition for the ICC. Throughout the next year, we will feature posts from Coalition staff, civil society members and officials reflecting on 20 years of fighting impunity, lessons learned and challenges for the future of global justice.

Contact us at communications@coalitionfortheicc.org to add your voice.