What do women want? Tribunals' due attention to the needs of women & children

(Part 2 of a 3-part guest post on what women want from international criminal justice, by Judge Patricia M. Wald; Part 1 is here)

Womankind has a right to expect much from, and has a strong stake in the success of, international and hybrid tribunals.
Women and children represent the largest constituency of international humanitarian law and the tribunals that breathe life into it. They are the bulk of the casualties of war and the refugees of combat, the most numerous victims of war crimes, crimes against humanity, and genocide. A few statistics:
► One out of every 150 persons on earth is a refugee or displaced person due to armed conflict or human rights violations; at least 75% of them are women or children.
► In the conflict in Bosnia, there were an estimated 20,000 victims of sexual assault.
► An expert panel concluded that nearly every woman and girl over the age of 12 who survived the Rwandan genocide was raped.
Similar stories are being told today in Congo, in Darfur, and elsewhere. And so it has gone, for centuries, as far as women are concerned.
But the winds of war are changing direction, a bit anyway. And women worldwide look to our tribunals to stiffen up the breezes, to make it more perilous for combatants as well as civilian and military leaders to ignore or downplay the sufferings of women as “collateral consequences” of war. Just as they bear the greatest impact of war, women should have a right to claim a high priority in the strategic thinking of the tribunals.
But what does that mean in practice?
Dramatic strides have been made. All the tribunal charters specify, or have been interpreted to include, rape and other sexual violations as war crimes and crimes against humanity. Tribunal jurisprudence has elaborated on the variations of sexual abuse. Examples:
► In the Kristić case on which I sat, the International Criminal Tribunal for the former Yugoslavia pronounced the effect of executing more than 7,000 young male household heads – though sparing the women – as a form of genocide that intentionally destroyed a targeted group of Muslims in Srebrenica.
► Tribunals have made rape prosecutable by eschewing rigid definitions that required actual physical force in favor of recognizing broader kinds of coercion and intimidation, and have declared rape in some circumstances to be a form of torture and a tool of genocide.
► Virtually all the recent indictments from the International Criminal Court have contained gender-based allegations, although there is a need to flesh out the contours of as-yet-charged crimes like forced pregnancy and trafficking in women and children.
What else should women want – or expect?

Early investigation
I have heard repeated complaints from some women inside tribunal prosecution offices that the focus on gender-based crimes must, but does not always, come at the very beginning of an investigation. Field investigators, the first responders, have to be sensitized to the range of potential crimes involving women and children and how best to elicit the information to prove them.
In many cultures, sexually abused women are not the most vocal of complainants or the most eager of witnesses. Gender crimes may indeed be harder to investigate than other kinds of war crimes. They are often harder to prosecute as well, not only because of the traumatic effects on the victim who must face her perpetrator anew in the courtroom, but also because of the difficulty of linking the rapist with the military or civilian commander in a faraway headquarters who ordered or approved the rape-terror strategy.
Yet women have a right to expect that these despicable crimes will be given their rightful priority in the tribunals’ strategic litigation plans.
This means, in the view of many women tribunal veterans, intensive gender-crime training for all levels of prosecutorial staff. Judges too. And in the words of one such veteran, this means “more than one three-hour lecture.”

Women & the judicial process
Women judges and prosecutors also have special obligations to pay attention to the treatment of other women in the judicial process. The women who work for them, and those who appear before them as witnesses or litigators, can feel less isolated or out of place when there are women in positions of power and prestige in the courtroom. This proved true in my own experience in U.S. courts as well as at the ICTY. Some research shows that litigants’ evaluation of justice is directly related to how they perceive their own treatment by court personnel; in turn, how the judges and prosecutors act toward them will trickle down to all levels of courthouse personnel.

Witnesses & victims
In the tribunals there is a special need for women judges and prosecutors to be sensitive to the plight of women witnesses and victims. Often these women and young girls have been traumatized not only by the crimes committed but by threats of retaliation and by shunning in their villages. The tribunals have set up Victims and Witnesses Protection units to offer escort services, temporary housing during court proceedings, and in some cases counseling; it is vitally important that women judges and prosecutors champion the Registry’s financial needs for adequate services.
I am sorry to say that women witnesses have occasionally, albeit rarely, faced hostile or demeaning questioning or even derogatory comments and embarrassing attempts at humor at their expense, sometimes participated in by judges. On those rare occasions women judges have a special obligation to admonish counsel and to express their own discomfort, not to sit silently by or let them go unchallenged.

Victim compensation
Based on my own trial experiences, I know that women who have suffered the loss of family members – one woman who testified in one of my trials saw three generations of her menfolk wiped out in a week – want not only accountability but compensation. Only the ICC and the Extraordinary Chambers in the Courts of Cambodia have direct authority to grant it. Where the money will come from is, of course, a primary problem. Here is an area in which women and their allies must themselves be reasonable in their expectations and demands; they cannot expect full compensation for their economic losses, let alone their emotional sufferings. And after a decent interval has passed to see how the system works, they should be tolerant enough to cooperate in an evaluation as to both how intense an intervention by victims the process can sustain and what priorities on compensation from a limited fund are most reasonable.

Public outreach
Women outside the tribunal process also need to be given the opportunity to understand what the tribunals are trying to do in order to draw their own judgments on how successful they are. Some hybrids, like the Special Court for Sierra Leone, have pioneered in going out into the villages to explain their goals and processes. The necessity for understanding and support from women in the outside world also suggests the ICC might take some of its hearings out of The Hague and go to the places where the violations occurred, so that the affected communities can see for themselves the merger of crime and punishment.

(Tomorrow: interpreting crimes against humanity to protect women in peacetime)

On February 13

On this day in ...
... 1542, Catherine Howard was beheaded for adultery at the Tower of London. Of this queen (below right), the 5th of 6 wives of the English King Henry VIII, this website writes:

Catherine Howard did not have an impact upon English history. She is perhaps the most inconsequential of Henry VIII's six wives, her reign as queen a very brief eighteen months. She bore no children and made no lasting impression upon those who knew her. But it should be remembered that she was thirty years younger than her husband, a silly young girl who never understood the dangers of royal regard. Her life was over before it had truly begun; we can only wonder how it might have ended differently.

Not a word of fault found with the fatally fickle king.
... 1961, officials in the province of Katanga announced that the man who'd served from June to September 1960 as Congo's 1st Prime Minister, Patrice Lumumba, was dead. It was claimed that Lumumba (below left) had been "killed by villagers trying to take him into custody"; however, years later that was deemed not to be the whole truth. According to the BBC:

A Belgian Government inquiry into the murders reported in November 2001 that they would not have taken place without the complicity of Belgian and American intelligence services.
In February 2002 the Belgian Government made its first official apology for its part in the assassinations and has set up a $3m fund to encourage democracy and development in the Democratic Republic of Congo.

... and counting ...

(Occasional sobering thoughts.) It is hard these days to know where to count:
► Headlines report that the death toll in Gaza has surpassed 350 children, women, and men since Israeli air strikes began on Monday.
► In a state we've discussed as a 3d front in the U.S. campaign against terrorism, a Taliban attack left "[m]ore than 30 people ... killed and more than two dozen wounded" in Pakistan Sunday, as voters waited to cast ballots in a legislative election in Sharibandi, in the northwest of the country. As might be expected from an attack on a school, some of these victims also were children.
► At a Catholic church in eastern Congo near the Sudan border, 189 persons, mostly children and women, were massacred the day after Christmas, in an attack that U.N. officials have blamed on the Lords Resistance Army.
► South of the U.S. border, 6,836 children, women, and men have died since Mexico's declaration in 2007 of a war on drugs in the country. The Los Angeles Times notes,

That's more than the U.S. fatalities in the Iraq war.

Despite this tragic competition, "...and counting..." will keep to its original task: as best as possible, keeping count of the civilian and servicemember casualties in Iraq and Afghanistan. These are, of course, the 2 theaters of combat in this U.S. troops are directly engaged. The 1st is 1 from which President-Elect Barack Obama repeatedly has pledged to disengage by means of U.S. troop withdrawal. This may occur, however, as military commitments in the 2d increase, as stories like this one indicate. It's a prospect that this IntLawGrrl hopes is undertaken with the height of caution.
With those thoughts in mind, here is the count in the 6 weeks since our last post:
Iraq Body Count reports that between 90,147 and 98,412 Iraqi women, children, and men have died in the conflict in Iraq since the U.S.-led invasion in March 2003, representing an increase of between 1,200 and 1,327 deaths in the last 6 weeks. According to the U.S. Defense Department, 4,219 American servicemembers have been killed in Iraq. Total coalition fatalities: 4,535 persons. That's 26 servicemember deaths in the last 6 weeks, all but 2 of them Americans.
As for the conflict in Afghanistan, military casualties in Afghanistan stand at 630 Americans and 412 other coalition servicemembers. That's an increase of 4 and 31, respectively, in the last 6 weeks, and a total servicemember casualty count 1,042. As for civilians and nonmilitary personnel, numbers are harder to come by. The New York Times reports:

A day after a suicide bomber killed at least 16 people, including 13 schoolchildren, in a region bordering Pakistan, a new rash of bombings shook different areas of Afghanistan on Monday, killing two civilians north of Kabul and two more in Kandahar Province.

That news comes fast upon other headlines that give little comfort:
► Violence against Afghan children rising, U.N. says
► UN chief in Afghanistan: Protect civilians
Now there's a thought.

The Gravity of International Crimes

As we’ve discussed before (see here and here), one of the primary justifications for the international or extraterritorial prosecution of international crimes is that grave crimes should not go unpunished. The international criminal law tribunals are specifically charged in their founding documents with concentrating on the most serious crimes of international concern or upon high level defendants who are most responsible for the commission of international crimes. At several points within the Statute of the International Criminal Court (ICC, left), gravity operates as an express limitation on the Court’s jurisdiction and as a guide to the exercise of prosecutorial discretion. And yet, there is little in the Court’s Statute, Elements of Crimes, or other constitutive documents elucidating the quantitative or qualitative contours of this key concept.

An Appeals Chamber of the ICC has recently made public its first ruling on gravity and set forth a blueprint for determining when crimes are sufficiently grave to justify ICC jurisdiction. In so doing, the Appeals Chamber appropriately refocused this inquiry on qualitative rather than quantitative factors, ensuring flexibility in pursuing cases and enhancing the deterrent power of the Court. The ruling is significant not only within the context of the ICC, but also as a source of guidance for other international, hybrid, and national tribunals that must determine which international crimes deserve the exercise of extraordinary jurisdiction. As we’ve discussed before, this very question is of acute relevance before the Extraordinary Chambers in the Courts of Cambodia, which are now considering a disagreement between that tribunal’s Co-Prosecutors as to whether they should expand their investigations beyond the five high-ranking individuals already in custody.

The concept of gravity permeates the ICC Statute at several key points. According to Article 5(1), the “jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole.” The prosecutor’s decisions (1) to initiate an investigation into a situation and then (2) to commence a prosecution against a specific individual are premised in part on a determination of a case’s admissibility under Article 17. Article 17(1), in turn, invokes the concept of gravity and provides that a case will be considered inadmissible if it “is not of sufficient gravity to justify further action by the Court.” In addition, pursuant to Article 53, the prosecutor may decline to initiate either an investigation or prosecution where there are “substantial reasons to believe that an investigation would not serve the interests of justice,” taking into account the gravity of the crime and the interests of the victims. Decisions to decline to initiate either an investigation or a prosecution are subject to some oversight by the Pre-Trial Chamber. In the case of a referral from the Security Council or a State Party, the Pre-Trial Chamber can “request the Prosecutor to reconsider [his or her] decision” not to proceed if so requested by the source of the referral. A decision by the prosecutor not to proceed with an investigation or prosecution on the basis of the “interests of justice” (which includes a consideration of the crime’s gravity and the interests of victims) is “effective only if confirmed by the Pre-Trial Chamber.” On the basis of these provisions and prevailing interpretations thereof, gravity concerns are thus relevant before the ICC at two key moments: during the identification of potential situations to investigate and in the choice of particular cases (i.e., crimes or individuals) to investigate and prosecute.
Although crucial investigative decisions are premised upon an objective assessment of gravity, the Statute provides little in the way of concrete guidance about how to undertake this assessment. In his published criteria for the selection of cases and situations, the ICC Prosecutor (left) has indicated that in assessing gravity, he will focus in part on the number of victims of particularly serious crimes, with reference to the scale of the crimes and the degree of systematicity in their commission. At the same time, he indicated that other more qualitative factors would also be relevant, such as whether the crimes are planned, cause “social alarm,” are ongoing or may be repeated, exhibit particular cruelty or reflect other aggravating circumstances, target especially vulnerable victims, are discriminatory in their execution, or involve an abuse of power. In addition, the prosecutor announced that he will consider “the broader impact of the crimes on the community and on regional peace and security, including longer term social, economic, and environmental damage.” By way of example, he noted that the situations currently under consideration in Central and East Africa involved thousands of displacements, killings, abductions, and large-scale sexual violence.
The ICC adjudicated these gravity provisions for the first time in the cases arising out of the ongoing regional war being waged in the Democratic Republic of Congo (map right). The rulings emerged in the context of the prosecutor’s request to the ICC’s Pre-Trial Chamber for the issuance of arrest warrants against two defendants: Thomas Dyilo Lubanga (Lubanga) and Bosco Ntaganda

(left)pursuant to Rule 58(1) of the ICC Statute. In this matter of first impression, the Pre-Trial Chamber determined that it had to confirm the admissibility of the case prior to issuing any arrest warrant. In so doing, the Pre-Trial Chamber looked to several factors.

• First, the Trial Chamber considered the existence of systematic or large-scale crimes.


• Second, Pre-Trial Chamber indicated that it would look to the “social alarm” caused within the international community by the relevant conduct.


• Third, the Pre-Trial Chamber indicated that it would consider the position of the accused and whether he or she fell within the category of the most senior leaders engaged in the situation under investigation, taking into account the role of the suspect in the state or organization implicated in the abuses. The Chamber reasoned that such an interpretation would maximize the deterrent effect of the Court by focusing on those individuals most capable of preventing the commission of international crimes.

Although the Pre-Trial Chamber issued the arrest warrant for Lubanga, it determined that Ntaganda was not a central figure in the decision-making process of his group and lacked any authority over the development or implementation of policies and practices (such as the negotiation of peace agreements). This was notwithstanding the fact that Ntaganda was in a command position over sector commanders and field officers. As such, the case against Ntaganda was deemed inadmissible, and the arrest warrant did not issue.
The Prosecutor appealed this decision, arguing that the Pre-Trial Chamber committed an error of law in defining gravity too narrowly for the purpose of considering the issuance of an arrest warrant against Ntaganda. The Appeals Chamber ruled as a preliminary matter that an admissibility determination was not a pre-requisite to the issuance of an arrest warrant. Turning to the issue of gravity, the Appeals Chamber determined that the Pre-Trial Chamber had erred in its interpretation of gravity in several key respects.

• First, it noted that imposing requirements of systematicity or large-scale action contradicted the guiding threshold language of Article 8(1) governing war crimes, which provides for jurisdiction only “in particular” when war crimes are committed “as part of a plan or policy or as part of a large-scale commission of such crimes” and duplicated aspects of the definition of crimes against humanity requiring a showing that the charge acts were part of a widespread or systematic attack against a civilian population.


• The Appeals Chamber also took issue with the concept of “social alarm,” which it noted depends on “subjective and contingent reactions” to crimes “rather than upon their objective gravity.”
  Finally, the Appeals Chamber noted that the deterrent effect of the Court will be maximized where all categories of perpetrator may be brought before the Court. It also noted that “individuals who are not at the very top of an organization may still carry considerable influence and commit, or generate the widespread commission of, very serious crimes.”

The Court thus reversed the finding of inadmissibility and remanded the case to the Pre-Trial Chamber to determine on the basis of Article 58(1) alone whether an arrest warrant against Ntaganda should issue. The Pre-Trial Chamber recently unsealed the arrest warrant against Ntaganda charging him alongside Lubanga with enlisting, conscripting and using child soldiers in armed conflict. Ntaganda remains at large.

On July 17

On this day in ...
... 1998 (10 years ago today), in Italy, at the headquarters of the Food and Agriculture Organization of the United Nations, delegates to a Conference of Plenipotentiaries voted to adopt the Rome Statute of the International Criminal Court. As I've written here and here, the statute was approved by an overwhelming margin of 120 to 7, plus a number of abstentions. Despite particularly vocal opposition from the United States, the statute rapidly attained the necessary 60 ratifications, and so entered into force on July 1, 2002. Earlier this week, Suriname became the 107th state party to the ICC treaty. No trial yet has commenced; however, matters are pending with respect to conflicts in the Central African Republic, the Democratic Republic of Congo, Uganda, and Sudan. The last matter was made possible when the 3 permanent members of the U.N. Security Council that do not belong to the ICC treaty regime -- not only the United States, but also China and Russia -- refrained from vetoing the 2005 referral of the matter, which pertains specifically to Sudan's Darfur region.
... 1944, napalm was used for the 1st time as a weapon of war. It was dropped by U.S. Army planes onto a fuel depot in St. Lô, France, during World War II. The frequent use of the incendiary chemical in conflicts since then is detailed here. (credit for photo of U.S. riverboat using napalm during Vietnam War)

'Nuff said

(Occasional item taking context-optional note of thought-provoking quotes.)

What is horrifying about Anne Frank’s diary is not so much the death of a girl as the crime of a state.

-- Nicholas D. Kristof, in a New York Times column on why genocide matters; why, in his view, deaths and destruction in Darfur deserve attention even though 10 times more lives have been lost amid conflict in the Democratic Republic of Congo in the last 10 years.

(credit for photo of excerpt from Frank's diary)

U.N. rapporteurs no longer so special?

The Human Rights Council this week stoked the controversy that's surrounded it since its founding in 2006.
The Council supplanted the Human Rights Commission -- a six-decades-old body that critics contended had become too political and, more to the point, too beholden to the politics of countries not themselves known for compliance with international human rights norms. Yet on many fronts human rights reform has not accompanied this re-forming of the U.N.'s human rights apparatus.
Not only has the Council concentrated on Israel to the exclusion of other countries, but it, like its predecessor, has included many human rights transgressors. Indeed, transgressors' sway may have increased, given the decision of the United States not to seek a seat on the Council. (Some surmise the the United States refused to run after counting noses and realizing that, on account of its own post-9/11 behavior, it might not win were it in fact to campaign for a seat.)
Add now yesterday's news of what Le Monde calls "a new breach in the system of 'special rapporteurs' inherited from the former Commission." On Thursday, Le Monde wrote,

under the pressure of the African group, and with the support of the Islamic Conference, China, and Russia, the Council proclaimed -- 'by consensus' -- the nonrenewal of the mandate of the 'special rapporteur' on the Democratic Republic of Congo (formerly, Zaïre), a country where human rights violates continue to be massive.

Congo thus joined Cuba and Belarus as countries who've been freed of Special Rapporteur investigations in 2 years, and adds fuel to concerns that most such mandates soon will disappear. Julie Gromellon of the Fédération internationale des droits de l'homme (FIDH) decried the notion that notion that a "thematic rapporteur" would do the job of the country-based expert, while Juliette de Rivero of Human Rights Watch issued this warning:

The Human Rights Council put politics before people by deciding not to renew the expert mandate on the Congo. Downgrading the council's work in Congo despite the recent rapes and killings is inexplicable and could have tragic consequences.