Go On! IHL emerging issues

(Go On! is an occasional item on symposia and other events of interest)

"International Humanitarian Law: Emerging Issues in the Law of Armed Conflict" is the theme of a conference to be held from 9:30 a.m. to 3:30 p.m. Wednesday, March 23, at American University Washington College of the Law in Washington, D.C. It's cosponsored by the law school's Center for Human Rights & Humanitarian Law and the American Society of International Law. The date coincides with the 1st day of ASIL's annual meeting, about which we've posted here and here.
The event's organized as part of an inaugural student writing competition in the area of international humanitarian law. Winning law students are:
► Elizabeth Holland, Suffolk University Law School in Boston, for "Holder v. Humanitarian Law Project and Its Crippling Impact on Humanitarian Assistance in Armed Conflict"; and
► Robert Clarke, University of Western Australia in Perth, for "The Klub-K Anti-Ship Missile System -- A Hypothetical Case Study in Perfidy and Its Repression".
They'll present papers to panels comprising IntLawGrrl Susana SáCouto (American) and IntLawGrrls' guest/alumna Laurie Blank (Emory), as well as Lucy Brown (American Red Cross), Morris Davis (Crimes of War Project), Hadar Harris (American), Dick Jackson (Lieber Society), Kate Jastram (California-Berkeley), Gary Solis (Georgetown; aside: kudos to Gary, who'll receive an ASIL Certificate of Merit for Contribution to a Specialized Field of International Law for his book The Law of Armed Conflict), Jon Tracy (National Institute of Military Justice), Jamie Williamson (International Committee of the Red Cross), and Rick Wilson (American). Our colleague David M. Crane (Syracuse), formerly the Chief Prosecutor for the Special Court for Sierra Leone, will deliver a keynote address. (image=detail from conference flyer)

Details here.

The torture ban & cultural relativism

At the XVIIIth International Congress of Comparative Law held here in Washington, D.C., last week (about which others have blogged here and here), I was asked to participate in a plenary session.
The session was entitled The Prohibition Against Torture and Cultural Relativism. Specifically, I was asked to speak about this issue from an international criminal law perspective, addressing in particular whether different notions of how to evaluate allegations of torture emerge in the jurisprudence of the ad hoc international criminal tribunals. Interestingly, I found that the way in which the tribunals dealt with this question had a gender dimension.
A summary of my thoughts follows.
Consistent with human rights law, torture under the jurisprudence of the international criminal tribunals consists of an act or omission giving rise to severe physical or mental pain or suffering. Notably, the tribunals have held that permanent injury is not a requirement for torture; moreover, evidence of the suffering need not even be visible after the commission of the crime.
Nevertheless, in some cases, the tribunals have highlighted that certain forms of torture have long-lasting effects on the victim, particularly in cases involving sexual violence.
In those cases, it appears that social and cultural context may be relevant to an assessment of whether the pain is severe enough to constitute torture. For instance, while the tribunals have recognized that rape qualifies as torture because it causes severe pain and suffering, both physical and psychological, an early judgment of the International Criminal Tribunal for the former Yugoslavia -- Prosecutor v. Delalic, Mucic, Delic and Landzo (the Celibici Case) (1998)-- explicitly pointed out:

The psychological suffering of persons upon whom rape has been inflicted may be exacerbated by social and cultural conditions and can be particularly acute and long-lasting.

A later judgment, Prosecutor v. Limaj (2005), agreed with this finding, noting that

in certain circumstances the suffering can be exacerbated by social and cultural conditions [and that] the evaluation should[, therefore,] take into account the specific social, cultural and religious background of the victims when assessing the severity of the alleged conduct.

Curiously, this later judgment highlighted the fact that this finding was

made specifically in the context of rape.

Perhaps this is not surprising, since harm from sexual violence is often long-lasting, in part because of the cultural and social norms prevalent in many of the victims’ communities.

Indeed, as commentators have noted, women and girls continue to suffer from the consequences of sexual violence long after a conflict or attack against the civilian population has ended, often because of the social and cultural values of the community to which the victim belongs. For instance,

the birth of children from rape [by a member of a group to which the victim does not belong] ... is likely to cause significant [and long-term] ... mental harm, especially in patriarchal societies where the ethnicity of the child is [considered to be] that of the father, thus the rapist.

(See the 2005 book by Professor Anne-Marie L.M. de Brouwer (left), Tilburg Law School, the Netherlands, entitled Supranational Criminal Prosecution of Sexual Violence: the ICC and the Practice of the ICTY and ICTR.) Similarly, long-term consequences such as isolation and ostracism are particularly common in social, cultural , or religious communities which attach stigma to the victim rather than the perpetrator of rape; indeed, victims of rape in these communities are sometimes cast as “unmarriageable” or abandoned by their spouse and/or family members.

Interestingly, the idea that cultural conditions should be considered in the analysis of whether particular conduct rises to the level of torture does not seem to appear in the discussion of other types of acts alleged to constitute torture.

In fact, acts such as:

► being forced to watch severe mistreatment inflicted on a relative;

► falsely informing a victim that his parent has been killed; and

► forcing victims to collect the dead bodies of other members of their ethnic group

have all been recognized as amounting to torture by the ad hoc tribunals without recourse to an analysis of the victims’ cultural or social background.

Consistent with this, consideration of cultural or social conditions is absent from the elements of torture, as enumerated in the Elements of Crimes that the Assembly of States Parties adopted to assist the judges of the International Criminal Court in interpreting the crimes within the jurisdiction of the Court. In fact, consideration of such factors is absent from the elements of all other crimes subject to the jurisdiction of the ICC, save one: the war crime, set forth in Article 8(b)(xxi) of the Rome Statute of the ICC, of commission of outrages upon personal dignity.

This crime requires that the

perpetrator humiliated, degraded or otherwise violated the dignity of one or more persons [to a] degree ... generally recognized as an outrage upon personal dignity.

A footnote to the definition states that it “takes into account relevant aspects of the cultural background of the victim.”

It may, perhaps, be appropriate to consider the broader circumstances in which the accused’s conduct occurred – including the cultural background of the victim – when assessing whether that conduct “humiliated, degraded or otherwise violated the dignity of” the victim, as what is considered to violate one’s dignity is often culturally dependent. Curiously, however, there is little discussion of victims’ cultural backgrounds in the jurisprudence of the ad hocs dealing with the war crime of outrages upon personal dignity. Indeed, while the tribunals have found, for instance, that:

► the use of detainees as human shields or trench-diggers;

► inappropriate conditions of confinement;

► performing subservient acts;

► being forced to relieve bodily functions in one’s clothing; or

► enduring the constant fear of being subjected to physical, mental or sexual violence

all qualify as outrages upon personal dignity, none of these findings were contingent upon an analysis of the victims’ social or cultural circumstances.

Thus, even in the context of assessing whether a person’s dignity has been violated – where the social, cultural or religious context may be relevant to understanding how a perpetrator’s conduct would be experienced by the victim as violating his or her dignity – a victim’s cultural heritage seems to have had little bearing on the tribunal’s analyses.

The tribunals’ lack of attention to cultural context may, perhaps, be explained by a shift in their jurisprudence with respect to how long the victim must have suffered as a result of the accused’s humiliating or degrading conduct – a factor that, as the ICTY indicated in its discussion of rape as torture, can be exacerbated by the social and cultural values of the community to which the victim belongs.

While an early case, Prosecutor v. Aleksovski (1999), suggested that the humiliating or degrading treatment must have caused “lasting suffering” to the victim, the trial chamber decision in a later case, Prosecutor v. Kunarac et al. (2001), found:

So long as the humilitation or degradation is real and serious, the Trial Chamber can see no reason why it would also have to be "lasting" .... Obviously, if the humiliation and suffering caused is only fleeting in nature, it may be difficult to accept that it is real and serious. However this does not suggest that any sort of minimum temporal requirement of the effects of an outrage upon personal dignity is an element of the offence.

I would submit that this is probably the right approach, not only in the context of prosecuting sexual violence as an outrage upon personal dignity, but also when prosecuting it as the war crime or crime against humanity of torture.

Indeed, not all women who suffered sexual violence in conflict situations are permanently shamed, ostracized, or rejected by their communities. In fact, one commentator writing on wartime rape in Bosnia-Herzegovina notes that when one rape survivor was asked whether she felt shame or guilt because of what happened to her, she responded:

'The shame is theirs, not mine.'

(See Feminism and its (Dis)contents: Criminalizing Wartime Rape in Bosnia and Herzegovina, a 2005 article by Karen L. Engle (right), Cecil D. Redford Professor in Law and Director of the Bernard and Audre Rapoport Center for Human Rights and Justice at the University of Texas School of Law.)

Opening the door to consideration of social and cultural conditions in assessing whether conduct was severe or serious enough to warrant characterization as an outrage upon personal dignity or an act of torture may lead to overlooking conduct that might not result in long-lasting suffering but would otherwise qualify as humiliating or degrading, or even as an act of torture.

More significantly, it may tempt the court to evaluate the circumstances of a case by reference to the judges’ own social or cultural norms.

The Sentencing Judgement in Prosecutor v. Zelenović case illustrates this point. The judgment in that case was confined to sentencing, as the accused there pleaded guilty to torture and rape as crimes against humanity. Noting that

[t]he gravity of the offences is the primary consideration in imposing a sentence,

the trial chamber first emphasized that

torture by means of rape is a particularly grave form of torture.

It then went on to point out that what makes rape a particularly serious crimes is

[t]he violation of the moral and physical integrity of the victims.

Although the accused’s conduct no doubt caused physical, and perhaps psychological, harm to the victims, it is unclear what the Chamber meant by stating that the rape also violated the victims’ “moral integrity.” The point here is that the Chamber’s use of the term “moral” seems to imply a value judgment about the nature of sexual violence which the victims may or may not have shared.

Notably, the ICTY Appeals Chamber's 2002 decision in Kunarac took an arguably more objective approach in analyzing the question of whether rape amounts to torture. Rather than considering the victims’ social or cultural background in assessing whether the harm was severe enough to qualify as torture, the Appeals Chamber held:

Generally speaking, some acts establish per se the suffering of those upon whom they were inflicted. Rape is obviously such an act .... Sexual violence necessarily gives rise to severe pain or suffering, whether physical or mental, and in this way justifies its characterisation as an act of torture.

In light of the circumstances in which victims find themselves in these cases – that is, in the midst of an armed conflict or a widespread or systematic attack against a civilian population – it is perhaps understandable that cultural conditions need not be considered when evaluating whether the harm suffered was serious or severe enough to qualify as torture. Indeed, as explained by the ICTY in Prosecutor v. Kvocka et al. (2001):

In considering whether severe pain and suffering was also inflicted upon the other victims of sexual violence, the Trial Chamber takes into consideration the extraordinary vulnerability of the victims [in this context] and the fact that they were held imprisoned in a facility in which violence against detainees was the rule, not the exception. The detainees knew that Radic [the accused] held a position of authority in the camp, that he could roam the camp at will, and order their presence before him at any time. The women also knew or suspected that other women were being raped or otherwise subjected to sexual violence in the camp. The fear was pervasive and the threat was always real that they could be subjected to sexual violence at the whim of Radic. Under these circumstances, the Trial Chamber finds that threat of rape or other forms of sexual violence undoubtedly caused severe pain and suffering to [the witnesses] and thus, the elements of torture are also satisfied in relation to these survivors.

In sum, I think that in this context there is little room for a cultural relativism approach.

Kampala Update: Stocktaking, Aggression

(Another in IntLawGrrls' series of Kampala Conference posts)

KAMPALA, Uganda – I last provided an update on the International Criminal Court Review Conference at the conclusion of the stocktaking discussions. Yesterday, several documents (available here) related to the stocktaking events were adopted:

► A resolution on the impact of the Rome Statute system on victims and affected communities,

► A resolution on complementarity,

► A moderator’s summary on the peace and justice discussion,

► A declaration on cooperation, and

► A summary of the roundtable discussion on cooperation.

Enforcement of sentences

As well, a resolution on strengthening enforcement of sentences – an initiative of Norway – was adopted. This resolution recognizes that there may be states that are willing to accept persons sentenced by the ICC, but which cannot enter into sentence enforcement agreements with the ICC because their prisons do not meet "widely accepted international treaty standards governing the treatment of prisoners," as required by Article 103 of the Rome Statute. The resolution encourages other states, and international and regional organizations, mechanisms or agencies, to cooperate with the interested state to help it bring its prisons up to international standards. The idea is that, if there is more cooperation among states in this respect, more states will be able to enforce ICC sentences, and convicted individuals will be able to serve sentences in prisons in a region nearer their homes. To date, the ICC has entered into sentence enforcement agreements with Austria, Belgium, Denmark, Finland, and the United Kingdom.

Aggression

The beginning of this week marked a turning point in the Review Conference. Attention is now squarely focused on the negotiations respecting the crime of aggression, about which IntLawGrrls have posted frequently this past year. Two days in a row, the Chair has issued a Conference Room Paper on the crime of aggression, putting forward language on the exercise of jurisdiction gleaned from state comments and views. The June 7 Conference Room Paper incorporated aspects of a proposal made by Argentina, Brazil and Switzerland. Canada and Slovenia have also put forward proposals on the exercise of jurisdiction. (Many documents available here.) Another Conference Room Paper might be issued today, based on yesterday’s country statements made in response to these two proposals. The Chair of those negotiations, Prince Zeid Ra'ad Zeid al-Hussein, Jordan's Ambassador to the United States and nonresident Ambassador to Mexico, expects that they will become quite intense as the end of the conference draws near. Accordingly, he asked all delegations to ensure that they are represented on Friday, even if the Review Conference goes late into the night (he said this because some participants have flights on Friday).

Additional events

Finally, I wanted to mention that there have been a number of fantastic side-events taking place at the Review Conference:

► IntLawGrrl Susana SáCouto has already blogged about the release of the report on “Case-based Reparations at the International Criminal Court” by the War Crimes Research Office at American University Washington College of Law.

► Another side-event to take note of is the launch by the ICC and the International Bar Association of the Uganda-specific “Calling African Female Lawyers” campaign. This national campaign, which is a part of a broader international six-month campaign, aims to encourage experienced female lawyers from Uganda to play a crucial role at the ICC by representing victims or defendants in proceedings before the Court. Over the next six months, applications from qualified African female lawyers – including Ugandan lawyers - will be given priority.

Kampala launch of ICC reparations report

(Another in IntLawGrrls' series of Kampala Conference posts)

KAMPALA, Uganda – The adoption in 1998 of the Rome Statute of the International Criminal Court marked the first time that an international criminal body was authorized to award against individual perpetrators of mass atrocities a range of reparations for the benefit of their victims. In the years since, the ICC’s reparations scheme has generated a high level of expectations. Indeed, some have gone so far as to suggest that the very success of the Court will depend on its ability to effectively implement the Statute’s reparations regime. Nevertheless, little is known about how the scheme will work in practice. This is due in part to the fact that the documents governing the ICC establish the scheme in very general terms, and in part to the fact that the scheme is sui generis in that it is the first international process designed to award reparations to victims of mass atrocities in the context of criminal proceedings against individual perpetrators.

The aim of the latest in a series of ICC reports by the War Crimes Research Office (for which I serve as Director) of American University Washington College of Law, entitled Case-Based Reparations at the International Criminal Court, is, 1st, to highlight the need for the Court to establish principles relating to the operation of this scheme outside of the context of any single case; and 2d, to offer a number of proposals for the Court to consider when drafting these principles.

Among the issues that the Report suggests that the Court should consider when drafting its principles on reparations are the following:
► Timing. As a general matter, the report recommends that the Trial Chamber hold a separate reparations phase, after the Chamber has made a determination that an accused is guilty for one or more crimes under the jurisdiction of the Court.

► Definition of victims. The report proposes that, consistent with the definition of victim for purposes of participation, the Court make clear that “harm” may include material, physical, and psychological harm, and can attach to both direct and indirect victims; causation should be based on a standard of “proximate cause”; and the standard of proof should be something akin to preponderance of evidence/balance of probabilities. Importantly, the report suggests that the principles should make clear that the Chambers have wide discretion with regards to the evidence they may consider in evaluating whether the standard has been met.
► Types of available reparations. The report emphasizes that the Court should expressly recognize that there is no one-size-fits-all approach to reparations. Rather, the individual circumstances of each case must be considered and any combination of the different forms of reparations may be awarded, including both collective and individual. Significantly, some commentators have distinguished between perpetrators with assets and those without assets, suggesting that reparations should take the form of monetary compensation where the perpetrator is found to have resources. The report takes the position that the Court should not necessarily assume this to be true or that other forms of reparations are only appropriate in the case of perpetrators with limited or no resources. Indeed, it argues that there are a number of reasons why dispensing individual compensation payments directly to victims may not be the most appropriate award, even where the Court has access to a perpetrator’s assets.

► Use of experts. In all but most straightforward of cases, the report recommends that the Trial Chambers invoke its authority under Rule 97(2) of the ICC Rules of Procedure and Evidence to appoint appropriate experts to assist it in determining the scope and modalities of reparations awards. It further recommends that experts be used not only for processing awards (that is, making findings of fact regarding who qualifies as a victim and the harm suffered), but also for advising the Court on the substance of reparations awards, after extensive consultation with victims and other potential stakeholders.

► Role for the Trust Fund for Victims regarding case-based reparations awards. The report recommends that, wherever practicable, a Chamber should designate the Trust Fund for Victims as the “appropriate experts” under Rule 97(2) of the ICC Rules of Procedure and Evidence to assist it in the processing and determination of a reparations award. Several factors support the use of the Trust Fund for Victims in this context:

1st. Because the Trust Fund is authorized to provide assistance to victims of crimes falling within the jurisdiction of the Court outside the context of case-based reparations, it will often be the case that, by the time a Trial Chamber issues a final judgment convicting a particular perpetrator, the Trust Fund will have already conducted significant activity for the benefit of victims of the more general situation from which the individual case arose.

2d. Moreover, in determining which projects to implement under its general assistance mandate, the Trust Fund engages in many of the activities that will need to be undertaken in the processing and determination of case-based reparations awards.

3d. Finally, the report suggests that the use of the Trust Fund for Victims as the “appropriate experts” envisioned under Rule 97(2) is warranted because the Fund is a permanent institution that will have an ongoing relationship with the Court, which offers a benefit over the use of ad hoc bodies of experts appointed on a case-by-case basis in two ways. The Trust Fund will benefit from institutional knowledge and lessons learned in the implementation of both its general assistance and, over time, court-ordered reparations awards. And as a permanent institution, the Fund will be able to develop processes that its staff will follow across cases and situations, thereby increasing the likelihood that reparation awards will be perceived as fair.

The launch of the report – the twelfth in the ICC Legal Analysis and Education Project of the War Crimes Research Office (prior post) – was held on Friday evening, at the end of the first week of the Review Conference of the Rome Statute of the International Criminal Court near Kampala, Uganda. The panel discussion included remarks by Miia Aro-Sánchez (Embassy of Finland in The Hague) and Elena Bornand (Embassy of Chile in The Hague) – both of whom served as focal points on the impact of the Rome Statute system on victims and affected communities – Elizabeth Rehn, the Chairperson of the Trust Fund for Victims, yours truly and Katherine Cleary, Assistant Director of the War Crimes Research Office. The launch was attended by representatives of States Parties and nongovernmental organizations as well as ICC officials, including Kristin Kalla, the Acting Director of the Trust Fund for Victims and Paulina Massida, head of the ICC’s Office of Public Counsel for Victims.

(Cross-posted at ASIL Blog - ICC Review Conference)

IntLawGrrls at ICC Review Conference

(1st in a series of IntLawGrrls' Kampala Conference posts)

The Review Conference of the Rome Statute of the International Criminal Court will open in Kampala, Uganda, this Monday, May 31, and will run until June 11. This is the first Review Conference since the adoption of the Rome Statute in 1998.
As detailed in the provisional work programme, the Review Conference will begin with a plenary, with statements by the current UN Secretary-General, Ban Ki-moon, and the former UN Secretary-General, Kofi Annan. The President of Uganda will also make a statement, as will the President of the ICC’s Assembly of States Parties, the President of the ICC and the ICC’s Prosecutor. These statements will be followed by country statements, including statements by many of the 111 States Parties.
On the evening of June 1, discussions on the subject of IntLawGrrls' year long series, the crime of aggression, begin. So do discussions on the Belgian proposal to amend the war crimes provision to prohibit the use during non-international armed conflict of certain weapons (poison or poisoned weapons; asphyxiating, poisonous or other gases; and bullets which expand or flatten easily in the human body).
On June 2 and 3, there will be a series of stocktaking exercises, evaluating the ICC’s past, current and future impact on victims and affected communities, as well as peace and justice issues, and the application of the ICC’s complementarity and cooperation provisions.
The remainder of the Review Conference will be dedicated to discussions on the crime of aggression, the Belgian proposal, strengthening the enforcement of sentences, and the potential deletion of article 124 (a transitional provision permitting a State to make a declaration excluding the Court’s jurisdiction over war crimes for seven years).
In addition, civil society will hold a wide variety of side-events, taking place in the People’s Space. One that we are very excited about is the Women’s Court, to be held all day on June 1. It is being organized by the Hague-based nongovernmental organization Women’s Initiatives for Gender Justice. At this Court, women’s rights activists from Uganda, Democratic Republic of the Congo, Central African Republic and Sudan will speak. (image at right courtesy of the Women's Initiatives)
Approximately 2000 state representatives and representatives of nongovernmental and intergovernmental organizations will be in attendance at the Review Conference, including a number of our very own IntLawGrrls. Beth Van Schaack will serve as an academic advisor on the U.S. delegation (her series posts here, here, and here), and yours truly will serve as an academic advisor on the Canadian delegation. A new guest, Pam Spees, and I will contribute a joint post (here) in honor of our recently departed friend and mentor, Rhonda Copelon, now an IntLawGrrls foremother. In addition to this and to my solo posts (here, here, here, here, and here), IntLawGrrls planning to post from Kampala include Susana SáCouto (here) and Kelly Askin. Another new guest, our colleague Leila Nadya Sadat, will contribute posts from Kampala (here and here). IntLawGrrls guests/alumnae will also contribute: Margaret deGuzman will post about the stocktaking complementarity discussion (here; additional post here), and Brigid Inder, Kate Orlovsky and Katrina Anderson will blog (here) about the Women’s Court and other Women’s Initiatives events. From elsewhere in our world, IntLawGrrl Diane Marie Amann will write "Against aggression" (here; additional posts here, here, here, here, here, and here), IntLawGrrl Kathleen A. Doty will discuss the ICC and Darfur (here), and IntLawGrrl Naomi Roht-Arriaza will examine a "positive complementarity" analogue in Guatemala (here). Guests/alumnae Pamela Yates will tell us about the work Skylight Pictures is doing in Kampala (here), and Carmen Márquez-Carrasco will provide a post (here) about the European Union and the ICC.
More soon from (and about) Kampala ...

New report on cumulative charging at ICC

A new report on cumulative charging has just been released by the War Crimes Research Office, American University Washington College of the Law, for which I serve as Director.
Cumulative charging has become an issue in Prosecutor v. Jean-Pierre Bemba Gombo, an International Criminal Court case arising out of violence in the Central African Republic. (Prior IntLawGrrls posts available here.)

On 15 June 2009, the ICC's Pre-Trial Chamber II issued a decision that both confirmed and denied various charges lodged against Bemba, and then sent the confirmed charges to trial.

The Prosecution had alleged that Bemba bore responsibility for these offenses based on evidence establishing, inter alia, his role in numerous acts of rape committed against civilians in the Central African Republic. Importantly, the Pre-Trial Chamber did find sufficient evidence to establish substantial grounds to believe that these acts of rape took place, and that the accused could be held criminally responsible for the acts. Yet, it held that the Prosecution had acted inappropriately by bringing “cumulative charges” based on the acts of rape. Thus it confirmed only the charges of rape as a crime against humanity and rape as a war crime, and dismissed the charges of torture as a crime against humanity and outrage upon personal dignity as a war crime.

The report just issued by our War Crimes Research Office examines 2 determinations of the Bemba Pre-Trial Chamber:

► That the practice of cumulative charging is not warranted in the context of the ICC as a general matter; and

► That, in the Bemba case before it, the charges of torture as a crime against humanity and outrage upon personal dignity as a war crime were inappropriately cumulative.

The report begins with a discussion of cumulative charging in international criminal bodies, where the practice is widely accepted. It then lays out the relevant jurisprudence from the Bemba case. Finally, the report analyzes the Bemba jurisprudence and offers recommendations.

In particular, the report concludes that:

► Nothing prohibits the practice of cumulative charging at the ICC, and

► Persuasive reasons exist to permit the practice.

On this basis, the report recommends that the ICC broadly permit cumulative charging, or, at a minimum, that it permit multiple charges based on the same evidence where each charge contains a materially distinct element.

More on International Justice Dialogue

(We welcome IntLawGrrls guest/alumna Valerie Oosterveld back for this guest post. Valerie, in turn, extends her thanks for the invitation to contribute to the blog.)

In her post a few days ago, IntLawGrrl Susana SáCouto highlighted the International Gender Justice Dialogue held last week in Puerto Vallarta, Mexico. She featured the panel on “Prosecutions and Jurisprudence – What have we achieved and what remains to do done?”

Other panels at the Dialogue, which I attended, focused on “Peace Talks and Outcomes – Strategies and Challenges”, “Women’s Rights and Peace Advocates in Conflict Situations and Fragile States” and “Mandates and Opportunities for Justice and Peace”.

While some originally-scheduled speakers were not able to attend due to travel disruptions caused by the Icelandic volcano, speakers did include: Jody Williams (Nobel Peace Prize Laureate and Chair of the Nobel Women’s Initiative), Fatou Bensouda (International Criminal Court, by video), Joanna Sandler (UNIFEM), Monica McWilliams (Chief Human Rights Commissioner, Northern Ireland, by video), Esther María Gallego Zapata (Ruta Pacifica de las Mujeres, Colombia), Sarai Aharoni (Hebrew University, Israel), Yanar Mohammed (Organisation of Women’s Freedom in Iraq), Thin Thin Aung (Women’s League of Burma, India), Gilda Maria Rivera Sierra (Centro de Derechos de Mujeres, Honduras), Chavi Nana (International Criminal Court), Susannah Sirkin (Physicians for Human Rights, USA), and

Kristin Kalla (International Criminal Court Trust Fund for Victims).

The Dialogue’s website contains video presentations of these speakers, including the powerful and inspiring closing presentation by Dr. Joan Chittister, co-chair of The Global Peace Initiative of Women, which you can watch here.

As the event was indeed a dialogue, the second day of the gathering focused on brainstorming around the themes of “Justice and Jurisprudence”, “Peace Talks and Implementation”, and “Communicating Gender Justice”. I served as a rapporteur for the group on Justice and Jurisprudence, which tackled key questions such as:

► “What are the judicial obstacles to the advancement of gender justice?”

► “What are some upcoming opportunities within the International Criminal Court and elsewhere for advancing gender justice?”

► “Where does the field of international criminal justice need to be in relation to gender issues in the next 3-5 years?”

The Women’s Initiatives for Gender Justice also took the opportunity of the Dialogue to launch its newest publication, “In Pursuit of Peace”, which can be accessed here.

Writing from Kenya, as air travel cancellations kept her from attending, Ava A. Maina Ayiera summarized the feelings of the attendees at the Dialogue well:

'I do not know what journeys and stories of women’s rights, women’s empowerment emerge from Iceland, yet their stories, my stories will connect and mirror each other; stories of women determined to realize equality, to redress discrimination, to resist the degradation that comes with patriarchy and to seek justice.'

International Gender Justice Dialogue

From 20-21 April, the Women's Initiatives for Gender Justice in collaboration with the Nobel Women's Initiative hosted the International Gender Justice Dialogue, in Puerto Vallarta, Mexico.

The goal was to bring together gender experts, feminist legal theorists, peace mediators, legal practitioners, jurists, women’s rights advocates, policy makers, members of the media, and activists to identify and develop a strategic, shared agenda for advancing gender justice around the globe.

Although most participants from Europe and Africa were unable to attend because of the volcanic eruption in Iceland (which grounded flights throughout Europe), participants from other regions gathered for a day of panels and a second day of working group discussions. Among the highlights was Women's Initiatives Executive Director and IntlawGrrl guest/alumna Brigid Inder's (pictured right) opening speech, which you can read here.
As Professor Tina Dolgopol (pictured left left), of Flinder Law School in Adelaide, South Australia, noted in her observations about the first day,

A recurrent theme is the necessity of building networks, ensuring that your work
is based on an agreed and transparent set of principles and that you communicate often with your supporters. We hear these ideas from those involved in peace processes, justice networks and from the promotion of women’s rights generally.

IntLawGrrls Kelly Askin and I spoke on a panel entitled "Prosecutions and Jurisprudence - What have we achieved and what remains to be done," along with Professor Catharine A. MacKinnon, who sent in her comments via video. The session was moderated by IntLawGrrl guest/alumna Valerie Oosterveld.

One of the areas I touched on was a project we are undertaking that will hopefully contribute to the process of how we better assess the jurisprudence coming out of the international criminal tribunals, and therefore, the impact these tribunals are having on gender justice.
In October 2008, my office (the War Crimes Research Office at American University's Washington College of Law) organized, in collaboration with the WCL's Women's International Law Program, a two-day conference on “Prosecuting Sexual and Gender-Based Crimes Before International/ized Criminal Courts.” Participants brainstormed about potential strategies and what was needed to improve the prosecution of sexual- and gender-based crimes before these tribunals. High on the list was the need for a modern, searchable, online database of cases (and related documents) coming out of these tribunals, focused on sexual- and gender-based crimes. In response to this need, last year we launched the Gender and ICL Jurisprudence Collections Project. The project has four phases:

1) collection of key decisions, orders and judgments relating to sexual and gender-based violence and making them available online so that you will be able to search them within and across courts;
2) key-wording those cases to facilitate searches relating to how these tribunals have handled cases involving sexual and gender-based violence;
3) digesting those cases with a view to highlighting the facts, allegations or factors affecting the prosecution of such crimes; and
4) providing commentaries on a select number of cases we identify as critical to understanding the development of the law in this area.

The basic aim of the project is to facilitate research in this area by practitioners, advocates and academics, but more importantly to “surface” the decisions that may go unnoticed between indictment and judgment, but which have important consequences for how sexual and gender-based violence is treated by these tribunals.
Follow outcomes from the Gender Justice Dialogue working groups here.

On the Job! Jurisprudence Collections Coordinator

(On the Job! pays occasional notice to interesting intlaw job notices) The War Crimes Research Office (WCRO) at American University Washington College of Law is seeking a qualified and highly motivated candidate for the position of Jurisprudence Collections Coordinator. This individual will be responsible for implementing and supervising the collection, organization, and indexing and digesting jurisprudence from international/ized courts and tribunals. The goal is to create and maintain a highly flexible legal research tool for practitioners worldwide.
After completion of the initial indexing project, the Coordinator will be expected to maintain and improve the Collection, work with the WCRO Director to explore opportunities for expansion, and help to maximize use of the resource among international/ized criminal courts, NGOs working in the field, academic institutions, and other relevant constituencies. The Coordinator may also be called upon to take on discrete research projects, depending on WCRO needs and the Coordinator's abilities.
Position Requirements:
► A high level of proficiency with Internet-based research, Microsoft Office, and Adobe Acrobat essential
► Familiarity with document management software or digital asset management required; familiarity with Extensis preferred
► Familiarity with web content development and content management systems preferred
► Knowledge of international/ized criminal tribunals, international humanitarian law and/or international criminal law
► Excellent oral and written English skills required
► Excellent organizational skills and attention to detail essential
This is a part-time 27 hour/week position at $20/hour with the potential to become full-time.
To Apply: Applicants should send a detailed resume, cover letter, writing sample, and the names and contact information for three references to WCRO Director Susana SáCouto by email at warcrimes@wcl.american.edu.

Guest Bloggers: Brigid Inder, Kate Orlovsky & Katrina Anderson

It's IntLawGrrls' great pleasure to welcome Brigid Inder (left), Kate Orlovsky (below right), and Katrina Anderson (below left) as today's guest bloggers.
All 3 work at Women’s Initiatives for Gender Justice, an international women’s human rights organization that advocates for gender justice through the International Criminal Court. Based in The Hague, Women Initiatives: conducts political and legal advocacy for the prosecution of gender-based crimes; advocates for victims’ participation before the ICC and reparations for women victims and survivors of armed conflicts; and engages in peace processes and negotiations. It also operatives extensive country-based capacity building programs and access-to-justice initiatives.
► Brigid is the Executive Director of Women’s Initiatives for Gender Justice. Before founding the organization, she was the Director of Community Legal Centres in New South Wales, Australia, and led HIV/AIDS health promotion, services, and anti-discrimination program at Australia's largest HIV/AIDS Council. Brigid has a background in international politics and advocacy for women’s rights at the United Nations and other global policy arenas, and is currently the President of AWID, the Association for Women’s Rights in Development.
► Kate has been a Legal Officer with the Women’s Initiatives for Gender Justice for a little over a year; before that, she consulted for a number of international organizations working on international justice, including the International Center for Transitional Justice, the Coalition for the International Criminal Court, and Human Rights Watch.
► Katrina joined the staff of the Women’s Initiatives for Gender Justice as a Legal Officer this past July. Her previous position was as a Human Rights Attorney at the Center for Reproductive Rights in New York. She has also worked with the War Crimes Research Office at American University’s Washington College of Law, of which IntLawGrrl Susana SáCouto is Director, and with the Documentation Center of Cambodia.
In their guest post below, the 3 set forth a critique of 2 recent rulings that limit the ability of the ICC prosecutor to press a complete set of allegations respecting sexual violence and gender-based crimes.
Heartfelt welcome!

In Prosecutor v. Bemba, disturbing ICC decisions on gender-based crime

(Our thanks to IntLawGrrls for the opportunity to contribute this guest post)

Rulings by Pre-Trial Chamber II of the International Criminal Court in the case of Jean-Pierre Bemba Gombo (left) present a worrying development in the prosecution of gender-based crimes.
Twice now that Pre-Trial Chamber has refused to allow the Prosecutor to bring multiple charges of sexual violence to address the full range of harms experienced by victims of rape. The first refusal occurred in its June 15 decision confirming the charges against Bemba (prior IntLawGrrls posts); its second, in its recent decision to deny the Prosecutor’s request for appeal.
At the heart of the Pre-Trial Chamber’s reasoning is the idea that two charges sought by the Prosecutor to address crimes of sexual violence — torture and outrages upon personal dignity — are “in essence” the same as the single charge of rape. Such reasoning fails to appreciate that the elements of torture and outrages were drafted to capture harm distinct from the penetrative act of rape and to address different policy goals. This reasoning:
► minimizes the harm, impact, and purpose of the rapes suffered by the victims of these particular crimes;
► contravene a decade of jurisprudence by the ad hoc tribunals; and
► ignores the various provisions in the Rome Statute of the ICC that allow for the prosecution of sexual violence; the statute thus recognizes that gender-based violence, like other crimes, can be charged cumulatively to address different harms arising from the same criminal acts.
In its June 15 ruling, the Pre-Trial Chamber had confirmed charges against Bemba, including charges of rape as a war crime and crime against humanity. (Bemba, alleged President and Commander in Chief of the Mouvement de libération du Congo, was originally charged with eight counts of war crimes and crimes against humanity that Mouvement members committed in the Central African Republic in 2002-2003; the attacks included rapes perpetrated on a mass scale which, the Prosecutor alleged, were committed with such extreme violence and cruelty so as to amount to torture.)
However, the Chamber declined to confirm three counts that were also based on acts of sexual violence: torture as a crime against humanity, torture as a war crime, and outrages upon personal dignity. These separate charges of torture and outrages address, respectively, the pain and suffering experienced by the rape victims and their family members, as well as the victims’ humiliating and degrading treatment from the public and intra-family nature of the rape acts.
In addition to finding the Prosecutor had not provided sufficient notice to the Defence of the material basis for the charges other than rape, the Chamber reasoned that the counts of torture and outrages were “fully subsumed by the counts of rape.” In the view of the Chamber, these charges could therefore not be confirmed because they lacked a distinct element to the charge of rape; to allow them to go forward would be “detrimental to the rights of the Defence” because the Defence would have to confront “all possible characterizations.” Noting that Regulation 55 of the Regulations of the Court allows the Trial Chamber to modify the legal characterization of the facts, the Pre-Trial Chamber stated that the issue could be rectified at a later stage.
The Prosecutor submitted a request for leave to appeal the Chamber’s dismissal of the torture and outrages charges. Soon after, our human rights organization, the Women’s Initiatives for Gender Justice, requested, and was granted, leave to file an amicus curiae brief with the Court on the issue of cumulative charging and the rights of the accused.
Just a few weeks ago, on September 18, the Chamber issued its most recent decision, in which it refused to grant the Prosecutor’s request for leave to appeal, and reiterated that the facts presented by the Prosecutor “were in essence constitutive elements of force or coercion in the crime of rape, characterizing this crime, in the first place, as an act of rape.”
Written by Patricia Viseur Sellers (left), former Legal Advisor for Gender Related Crimes at the ICTY, the Women’s Initiatives’ amicus curiae brief argued that the Chamber misapplied the cumulative charging test that the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia had developed in Prosecutor v. Delalic. The practice of cumulative charging, which can occur until the end of trial, must be distinguished from due process violations arising from cumulative convictions, which may be pronounced by the judge upon a finding of guilt. Cumulative charges, as long as they are supported by sufficient evidence, are not inimical to the rights of accused because these rights are safeguarded throughout the trial. The Chamber’s approach also both appears to ignore the distinct crimes, articulated in the Rome Statute, under which an accused can be charged for sexual violence, and contradicts the Elements of Crimes, an instrument that states, in its general introduction, “a particular conduct may constitute one or more crimes.”
In this particular case, the Chamber’s narrow construction of the cumulative charging test resulted in the exclusion of certain sexual violence evidence with respect to certain categories of witnesses. For example, it is now unclear whether the Chamber will allow testimony from family members who were forced to watch their relatives being raped, even though the harm these individuals suffered is surely distinct from the harm of penetration as an element of rape. In the amicus filing by the Women’s Initiatives, Viseur Sellers compared the Chamber’s approach to the very different result reached by the ICTY Trial Chamber’s judgment in Prosecutor v. Furundžija (1998). There a witness who had been forced to watch the repeated rapes of another was held to have been the victim of torture.
On the issue of rape as torture, the International Women’s Human Rights Law Clinic at CUNY School of Law had proposed a separate amicus in Bemba, but the ICC's Pre-Trial Chamber II denied that request.
Taken together the two Pre-Trial Chamber decisions, while not binding on other pre-trial chambers, raise critical issues, all of these issues were discussed in the Women’s Initiatives’ amicus brief, for those concerned about gender justice at the ICC to monitor:
► As mentioned, the Pre-Trial Chamber's referred to the Trial Chamber's power to revise the legal characterization of facts under Regulation 55. As IntLawGrrl Susana SáCouto posted on Thursday, this issue has also surfaced in the Lubanga trial: there the Trial Chamber gave notice to the parties, after the prosecution had presented its case, that the Trial Chamber may recharacterize the facts to include charges of sexual slavery and cruel and/or inhuman treatment.
► There are concerns about the sufficiency of evidence the Prosecutor is required to put forward at the pre-confirmation stage with respect to sexual violence charges.
► Similarly, there are concerns about the Chamber’s duty under Article 21(3) of the Rome Statute to apply the provisions of the Rome Statute in a non-discriminatory manner.

Update in the Lubanga Case

As has been blogged about here , Thomas Lubanga Dyilo was charged by the International Criminal Court with the offense set forth in Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Rome Statute, namely “conscripting or enlisting children under the age of fifteen years” or “using them to participate actively in hostilities.”

On 22 May 2009, over three years after Lubanga was first taken into custody by the ICC and over two years after the Pre-Trial issued its decision confirming the charges against him, the Legal Representatives of the Victims in Prosecutor v. Thomas Lubanga Dyilo filed a joint application with the Trial Chamber requesting that the Chamber use its authority under Regulation 55 of the Regulations of the Court to apply “an additional legal characterization” to the facts and circumstances described in the charging document, namely by adding the crime against humanity of sexual slavery and the war crimes of sexual slavery and cruel and/or inhuman treatment to the charges.

Regulation 55, which is entitled “Authority of the Chamber to modify the legal characterization of the facts,” states that:

1. In its decision under article 74 [referring to the final judgment of the Trial Chamber], the Chamber may change the legal characterisation of acts to accord with the crimes under articles 6, 7 or 8, or to accord with the form of participation of the accused under articles 25 and 28, without exceeding the facts and circumstances described in the charges and any amendments to the charges.
2. If, at any time during the trial, it appears to the Chamber that the legal characterisation of facts may be subject to change, the Chamber shall give notice to the participants of such a possibility and having heard the evidence, shall, at an appropriate stage of the proceedings, give the participants the opportunity to make oral or written submissions. The Chamber may suspend the hearing to ensure that the participants have adequate time and facilities for effective participation of, if necessary, it may order a hearing to consider all matters relevant to the proposed change.
3. For the purposes of sub-regulation 2, the Chamber shall, in particular, ensure that the accused shall: (a) Have adequate time and facilities for the effective preparation of his or her defence in accordance with article 67, paragraph 1(b); and (b) If necessary, be given the opportunity to examine again, or have examined again, a previous witness, to call a new witness or to present other evidence admissible under the Statute in accordance with article 67, paragraph 1(e).

In their filing, the Legal Representatives argued that the crime against humanity of sexual slavery and the war crimes of sexual slavery and cruel and/or inhuman treatment were supported by the facts and circumstances found in the Amended Document Containing the Charges, which reflects the charges confirmed by Pre-Trial I in its Decision on the Confirmation of Charges (“Confirmation Decision”). In other words, they argued that the facts alleged in the charging document could constitute the new crimes proposed.

In response, the Defense argued, inter alia, that the facts relied on by the Legal Representatives in support of their request exceeded the facts and circumstances described in the charges. For instance, the Defense pointed out that the Confirmation Decision made no mention of “facts and circumstances” supporting a widespread or systematic attack against a civilian population, which would be necessary to substantiate a crime against humanity charge. Therefore, the facts and circumstances could not be qualified as crimes against humanity. In addition, the Defense submitted that recharacterizing the charges in the manner requested by the Legal Representatives at this point in the proceedings would seriously affect the right of the accused to be tried without undue delay.

In a decision issued 14 July 2009, the same day that the Prosecution finished presenting its evidence in the case against Lubanga, the majority of Trial Chamber I held that it would consider adding the Legal Representatives’ proposed charges. Rather than assessing whether the facts relied on by the Legal Representatives in support of their request exceeded the facts and circumstances described in the charging document, the Trial Chamber concluded that this limitation was inapplicable to the “present procedural situation.” In reaching this conclusion, the Trial Chamber explained that Regulation 55 created “two distinct stages” during which the Trial Chamber could change the legal characterization of the facts. In its view, the first stage, defined in Regulation 55(1), allows the Trial Chamber to change the legal characterization of the facts “in its decision under article 74 [of the Rome Statute].” At that stage, the Trial Chamber is limited to recharacterizing the charges “without exceeding the facts and circumstances described in the charges. . . ” In the second stage, described in Regulations 55(2) and (3), the Trial Chamber can change the legal characterization “at any time during the trial.” According to the Chamber, modifications made at this stage need not be “done ‘without exceeding the facts and circumstances described in the charges . . .’”

Judge Fulford dissented from the majority opinion, arguing that Regulation 55 must be read as a singular or indivisible provision. Significantly, in his dissent, he references an earlier decision in which he and the two judges in the majority essentially endorsed this interpretation of Regulation 55. In that decision , the Trial Chamber explained that:

the terms of Regulation 55 do not involve any conflict with the main relevant provision, Article 74(2), because they allow for a modification of the legal characterisation of the facts rather than an alteration or amendment to the facts and circumstances described in the charges. Therefore, so long as the facts and the circumstances as described in the charges are not exceeded, pursuant to Regulation 55 it is possible to give those facts and circumstances a different legal characterisation, so long as no unfairness results.

Interestingly, in a subsequent clarification to the 14 July 2009 decision, the majority appeared to step back from its earlier position that modifications under Regulation 55(2) need not be limited to the facts and circumstances in the charging document, instead holding that any:

additional facts must . . . have come to light during the trial and build a unity, from the procedural point of view, with the course of events described in the charges.

While this seems to require some connection between the facts and circumstances in support of a request for recharacterization and those contained in the charging document, it is unclear what exactly would satisfy this standard.

Both the Prosecution and Defense sought leave to appeal the decision of the Trial Chamber. On September 3rd, the Trial Chamber granted leave to appeal, framing the first of two questions as follows:

Whether the Majority erred in their interpretation of Regulation 55, namely that it contains two distinct procedures for changing the legal characterisation of the facts, applicable at different stages of the trial (with each respectively subject to separate conditions), and whether under Regulation 55(2) and (3) a Trial Chamber may change the legal characterisation of the charges based on facts and circumstances that, although not contained in the charges and any amendments thereto, build a procedural unity with the latter and are established by the evidence at trial.

On October 2nd, the Trial Chamber issued a decision postponing the case, which was due to recommence on October 6th, until the Appeal Chamber issues a decision on the appeal. Stay tuned . . .