Write On! Thematic Investigation and Prosecution of International Sex Crimes

Our colleague Morten Bergsmo (left) has passed along a call to papers for a conference on "Thematic Investigation and Prosecution of International Sex Crimes" to be held in Cape Town on March 7-8, 2011 under the auspices of the Forum on International Criminal and Humanitarian Law.

This event follows on a seminar being held this week at Yale University on "Proving Sex Crimes," as we discuss here. The Forum, which is under Morten's direction, seeks proposals addressed to the following topics:

International sex crimes were first investigated and prosecuted in a systematic manner by the ICTY through the so-called 'Fo?a cases' (referring to Foca Municipality in Bosnia and Herzegovina). The Tribunal used a default strategy of 'thematic prosecution': that is, it gave at least initially the international sex crimes priority over other crimes, including more serious crimes such as killings. This was considered necessary by the ICTY Office of the Prosecutor in order to focus adequate resources to build complex and time-consuming cases. It was done as an exception to the standard approach which is to consider the totality of crimes first - including possible sex crimes - and when that is done, proceed to prioritize those crimes that are most serious overall. Thematic prosecution of sex crimes, on the other hand, entails that these crimes are singled out and prioritised for investigation and prosecution, even if that means that there may not be enough resources to investigate murders or other serious crimes that do not involve sexual violence. The ICC has later used thematic prosecution for the recruitment and use of child soldiers.

A reasoned justification for thematic prosecution of core international crimes - in particular sex crimes - has not yet been developed. This is a serious lacunae insofar as the practice of thematic prosecution is potentially controversial. It is easy for criminal justice officials worldwide to insist that the most serious core international crimes must be prioritised for investigation and prosecution, whether before international or national criminal jurisdictions. Most criteria for the prioritisation of cases place decisive emphasis on the gravity of the crimes. Regrettably, contemporary armed conflicts are still characterised by many killings, normally many more than the criminal justice systems concerned can process. Murder is widely considered more grave than sex crimes and torture.

Against this background, the seminar seeks to address the justification for why criminal justice officials can prioritise the investigation and prosecution of international sex crimes. The seminar will also consider the related questions of whether there should be thematic jurisdictions for international sex crimes (special courts or chambers), whether there should be special investigative and case preparatory institutional capacity for such crimes, or other forms of special measures to facilitate such investigations and prosecutions.

If you would like to present a seminar paper that would contribute substantially to the analysis of these questions, please send an abstract and your curriculum vitae to info@fichl.org by 20 November 2010.

"Now, The World is Without Me" Report on Sexual Violence in the DRC

Last month, the Harvard Humanitarian Initiative issued a chilling report on sexual violence in the eastern Congo: Now, The World is Without Me: An Investigation of Sexual Violence in eastern Democratic Republic of Congo, available here. I am particularly interested in these issues because I lived in Kinshasa, Congo, from 2002-2004, and I saw some of the devastation from the Congolese conflicts.
This is not the first report on sexual violence in the DRC, and, during her visit to the DRC last month, the UN Special Representative for Sexual Violence in Conflict, Margot Wallström, reiterated the pervasiveness and severity of the violence, calling Congo the "rape capital of the world." The HHI report is outstanding in its thoroughness and in its conclusions. The researchers reviewed more than 4,000 records at Panzi Hospital from women who had experienced sexual violence between 2004-2008. Panzi hospital is well-known through the region and the world for its work. Dr Denis Mukwege, the co-founder of the hospital, received the UN 2008 Human Rights Award for his work in treating the women and girls who come to the hospital for treatment.

The report carefully analyzed the demographics of the patients, including age, marital status, and literacy; almost 60% were illiterate, and another 27% had completed primary school. More than half of the attacks occurred in the women’s homes, and another 30% took place in forests and fields. Almost 60% of the assaults were gang rape, and another 12% of the assaults involved being held as a sexual slave for more than a day. Turning to perpetrators, the researchers found that, “[t]he mean number of assailants per sexual assault was 2.5 with a median of 2 and a range of 1 to greater than 20 assailants.” Most of the assailants were combatants, but 6% were identified as civilians; indeed, the proportion of civilian assaults increased from 1% in 2004 to 38% in 2008. Indeed, the report notes:

Collectively, these findings indicate a kind of “normalization” of sexual violence among the community as a result of widespread rape during the conflict . . . In focus groups, Congolese men acknowledged that rape had become a norm for young males who had grown up during the conflict in Eastern DRC. (p. 39)

At the same time, the report noted a decline in the number of women seeking treatment.
The report analyzes the effect of this sexual violence on women and their communities, assessing its social, economic, health, and personal impact. And, it includes narratives from the women about their experiences of sexual violence, making the demographic data even more graphic by showing the concrete effects of the violence. The report concludes with a series of recommendations, ranging from assuring care for the women and girls to holding the military and civilian perpetrators accountable and ending the longstanding culture of impunity.

ICC Update: The Spotlight Remains on Africa

The ICC Prosecutor, Luis Moreno Ocampo (left), is has announced developments with respect to two new situations in Africa.

1. Kenya

As we blogged before, the post-election violence in Kenya in 2007-8—which led to the deaths of 1,300 people and displaced 300,000 more—has been the subject of international scrutiny. A Commission if Inquiry, headed by Justice Phillip Waki, recommended the establishment of a special tribunal to prosecute individuals responsible for the violence and generated a list of suspects that allegedly includes cabinet ministers, MPs, and businessmen.

Ocampo (right, meeting with Kenyan officials) had indicated that if Kenya did not go forward with such a tribunal, he would seek authorization to open a formal investigation from the Pre-Trial Chamber. This has now come to pass. On November 7, 2009, Pre-Trial Chamber II was re-constituted to accept Ocampo’s filing, which will likely be made in early December, and consider whether to authorize an investigation pursuant to Article 15(4). This would be the first Article 15 proprio motu investigation by the Prosecutor. The Kenyan press has reported that the Government may seek to forestall an ICC investigation by establishing the proposed special tribunal to try suspects in Kenya through a bill originally introduced by human rights activist and Imenti Central MP Gitobu Imanyara (the Constitution of Kenya (Amendment) Bill, 2009).

The Press Release issued by Ocampo is available here.

2. Guinea

The Prosecutor also recently announced that he was opening a preliminary investigation into violence across the African continent in Guinea (map left), which joined the ICC in 2003. Over 150 people were reportedly killed when members of the military attacked anti-government protests in the capital of Conakry in September 2009 (photo right, credit). At the time, over 50,000 people were protesting the decision by President Moussa Dadis Camara, who assumed power in a military coup, to run in the next election. The attacks included acts of sexual violence.

Human Rights Watch has reported that the massacre was premeditated by the Presidential Guard; the government has claimed any injuries were the accidental result of a stampede.

These situations, while serious, implicate the principle of gravity, about which we’ve blogged before (see here and here). Stay tuned …

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!

Clinton chairs Security Council Wednesday

U.S. Secretary of State Hillary Clinton is slated to chair Wednesday's session of the U.N. Security Council.
Clinton (left) is due to return to the Council's headquarters (prior post) and gavel the session to order at 10 a.m. Eastern time tomorrow, September 30. (photo credit)
The subject is "Women, Peace, and Security," and the Council is expected to vote on a U.S.-sponsored resolution concerning sexual violence in armed conflict. The new resolution will follow up on S.C. Res. 1820 (2008), on which IntLawGrrls guest/alumna Doris Buss posted recently. Resolution 1820 is itself a followup to S.C. Res. 1325 (2000).
Check for live webcast here.

The Third Chautauqua Declaration

(What follows is the Third Chautauqua Declaration, issued by international prosecutors on September 1, 2009, at the close of the Third Annual International Humanitarian Law Dialogs, entitled “Honoring Women in International Criminal Law: From Nuremberg to the ICC,” of which IntLawGrrls and the American Society of International Law, among others, were cosponsors, as I've detailed in the post above)

In the spirit of humanity and peace the assembled international prosecutors and their representatives here at the Chautauqua Institution ...
Recognizing the continuing need for justice and the rule of law as a cornerstone to international society, and cognizant of the legacy of all those who preceded us at Nuremberg and elsewhere;
Taking note of the 60th anniversary of the Geneva Conventions in 1949 and its principles that maintain the rule of law on the battlefield;
Honor the life of our colleague and friend Henry T. King Jr., a prosecutor of the International Military Tribunal at Nuremberg who passed away in May of this year;
Commend his drive and force in ensuring that the spirit of Nuremberg continues;
Recognizing the role of women in the history and development of modern international criminal law;
Honor their sacrifice, their leadership and drive over the past fifty years in forging an international system of justice;
Commend the women who labor every day around the world in relative obscurity upholding the spirit of Nuremberg and the rule of law;
Taking note of the recognition in international criminal law of sexual and gender violence as an instrument of war, which can constitute war crimes, crimes against humanity and genocide;
Honor the life of Alison DeForges and recognize her life's work in seeking justice for the victims of the Rwanda Genocide;
Now do solemnly declare and call upon the international community to:
Keep the spirit of the Nuremberg Principles alive by:
Ensuring that the laws of armed conflict remain a cornerstone of maintaining protections of combatants, civilians and non-combatants alike;
Paying particular attention to the plight of women and children found in places of unrest and conflict to ensure that they are especially cared for and kept out of the conflict;
Ensuring that girls and women in conflict areas do not fall victims to rape and other forms of sexual violence;
Investigating, prosecuting or handing over to an appropriate judicial body those who violate international criminal law to ensure accountability of all persons including sitting heads of state;
Supporting the various tribunals and courts in their work to maintain the rule of law at both the international and domestic level;
Working with regional political bodies to ensure that the rule of law is maintained and that those who are found to be in violation of international law be handed over for a
fair and open trial to the international tribunal or court that seeks their person;

Signed in mutual witness:

Norman Farrell, International Tribunal for the former Yugoslavia
Henry King (in absentia/memoriam), International Military Tribunal Nuremberg
David M. Crane, Special Court for Sierra Leone
Fatou Bensouda, International Criminal Court
H.W. William Caming, International Military Tribunal Nuremberg
Joseph Kamara, Special Court for Sierra Leone
Hassan B. Jallow, International Criminal Tribunal for Rwanda (signed for by Alphonse Van)

CEDAW and Forced Displacement

Alice Edwards of the University of Nottingham (about whose work we've blogged previously here) has just released a new UNHCR background paper entitled Displacement, Statelessness, and Questions of Gender Equality under the Convention on the Elimination of All Forms of Discrimination Against Women, which she drafted for a joint seminar between UNHCR and the Committee on the Elimination of All Forms of Discrimination Against Women that took place in July. As I've discussed previously (here, here, and here), "displacement arising from armed conflict, persecution and other serious human rights violations can intensify [gender] discrimination and inequality." These two principles, equality and non-discrimination, lie at the heart of CEDAW and form the framework of analysis for the paper.
Edwards notes that international treaties protecting refugees and the stateless fail to include explicit prohibitions on gender discrimination and inequality, and offers CEDAW's provisions as a complement to these laws. Not only is CEDAW more comprehensive in the scope of its protections of gender equality, but it also applies to more women than the narrower forced migration treaties. CEDAW's affirmative obligations to eliminate discriminatory laws, policies and practices as well as social and cultural norms and stereotypes that discriminate against women ensure that violence and inequality will be addressed within both the public and private sphere. This is important for displaced and stateless women, who suffer significant discrimination within the home.
Edwards explains that gender inequality and discrimination can be a cause of migration, an obstacle to freedom of movement for women attempting to flee, a risk factor for food insecurity in camp situations, and a limitation on women's ability to find a durable solution, be it integration, resettlement, or return. Moreover, the stresses of forced displacement frequently exacerbate the risks of sexual and gender-based violence. The citizenship laws of many countries directly or indirectly discriminate against women in ways that leave them more vulnerable to statelessness then men.
Edwards' suggestions for reform? She explains the benefit of the independent monitoring role of the CEDAW committee in the context of forced migration, given that the Refugee Convention has no periodic reporting requirement and that UNHCR is often unable to act completely independently of local authorities where it needs to protect forced migrants within a state's borders. Edwards then lays out several mechanisms through which UNHCR and the CEDAW Committee can collaborate to protect the rights of displaced and stateless women. Well worth a read!

Understanding violence

This was a week to take note of progress-or-not in the global understanding of sexual violence as a punishable offense -- a crime of war, not a spoil of war, as then-Judge Navanethem Pillay famously said.
Impetus for this accounting was Secretary of State Hillary Rodham Clinton's call, during her official visit to the Democratic Republic of Congo, for "arrests, prosecutions and punishments" of persons responsible for rapes and other sexual and gender-based violence in that wartorn country.
But this week also brought a reminder to keep paying attention to understandings of sexual violence closer to home.
According to Monica Potts, reporter for the Stamford Advocate in Connecticut, attorneys are trying to shortcircuit a lawsuit brought by a rape victim by means of this argument:

[S]he was careless, negligent and 'failed to exercise due care for her own safety and the safety of her children and proper use of her senses and facilities.'

The phrasing -- in papers filed on behalf of defendants Stamford Marriott Hotel & Spa and various management companies -- begs recall of the "she asked for it" canard that was supposed to be long-gone. And if its revival were not enough, consider the underlying facts.
As reported by Potts, the plaintiff alleges that in October 2006, when she was 40 years old, a 56-year-old man "stuck a handgun in the back of" her "and forced her and her children, then 3 and 5, into their minivan as they left the hotel ...." The man "sexually assaulted the woman for several minutes, pointing the gun at her and her children and threatening to sexually assault one of her children." He fled but later was arrested. He pleaded guilty and was sentenced to 20 years in prison.
The suggestion of victim negligence boggles.

'Sexual abuse of a minor' in immigration law

(My thanks to IntLawGrrls for the opportunity to contribute this guest post on my scholarship)

When Juan Elias Estrada-Espinoza, a lawful permanent resident of the United States, was 20 years old, he met and started a relationship with a woman four or five years younger than himself. The couple lived with Estrada-Espinoza’s parents and raised a child together. Several years later, however, the state of California convicted Estrada-Espinoza of statutory rape. The Department of Homeland Security then instituted removal proceedings against Estrada-Espinoza, who now qualified as a deportable “aggravated felon” under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act.
In part, an “aggravated felon” is defined by that Act as a person who commits “murder, rape, or sexual abuse of a minor.” While the first two offenses appear relatively uncontroversial, courts have split over the correct interpretation of “sexual abuse of a minor.” Some courts (the U.S. Courts of Appeals for the Second, Third, Fifth, Seventh, and Eleventh Circuits), following the interpretation of the Board of Immigration Appeal, have chosen to apply the definition of “sexual abuse” as defined by 18 U.S.C. § 3509(a)(8), a federal provision construing the rights of child witnesses. This definition covers offenses against all children (anyone under 18), indecent exposure offenses, and does not include an age-span gap provision (permitting an adult to engage in sexual activity with a child who is within four or five years of the adult’s age). Thus, courts adhering to § 3509 could deport a legal alien convicted of indecent exposure, or one who had engaged in sexual activity with a peer (i.e., an 19 year old who had sex with a 17 year old).
With its the recent decision in Estrada-Espinoza v. Mukasey, however, the Ninth Circuit rejected the § 3509 approach of other appellate courts. The Ninth Circuit instead preferred the definition of “sexual abuse of a minor” embedded in 18 U.S.C. § 2242 et seq., provisions in substantive federal criminal law. This narrower definition excludes indecent exposure offenses, criminalizes only sexual contact with children 16 years or younger, and includes a four-year age-span gap provision. The 19 year old convicted of statutory rape based on his relationship with a 15 year old would be safe from deportation, as would an adult who repeatedly exposed himself to a 5 year old, or a 50 year old who had consensual sex with a 16 year-old.
This circuit split presents an opportunity to consider how we want immigration law to be applied, and what we believe to be the purpose of statutory rape laws. Currently, this split is resulting in the uneven and unfair application of deportation proceedings to legal aliens; an alien in one state might be deported for behavior that an alien just over the border can undertake in safety.
Deportation is severe in its consequences. Yet immigration law is considered civil, not criminal, law, a categorization that means aliens are not afforded many of the protections that criminal defendants enjoy, such as right to counsel. On account of this situation, a principle of lenity long-standing in immigration law holds that ambiguities should be resolved in favor of the alien. As Congress passes more and more restrictive laws towards legal aliens, it is perhaps more important than ever before to give aliens the benefit of the doubt, and to choose a narrower definition of “sexual abuse,” one that would result in fewer deportations.
Of course, in resolving ambiguities in favor of the alien, it is crucial that the law not relax its protection of sexually abused minors.
Statutory rape law, initially created to protect the chastity of virtuous young females, has developed to encompass competing feminist concerns. On one hand, feminists fear that looser statutory rape laws will simply enable the sexual exploitation of the children by unscrupulous adults. On the other hand, overly strict statutory rape laws will strip consenting youths of their ability to define and determine their own sexual behavior. The legal line must be drawn in a way which balances both of these concerns.
The fact that most state statutory rape laws both allow for a lower-than-18 age of consent and encompass an age-span gap provision indicates a general comfort with allowing older teenagers a certain amount of sexual autonomy. The definition in the Immigration and Nationality Act of “sexual abuse of a minor” should reflect society’s general determination of the proper balance between youth protection and sexual autonomy. Coupling this feminist-approved purpose of statutory rape laws with the principle of lenity, courts would be wise to follow the Ninth Circuit’s approach and apply the narrower definition of “sexual abuse of a minor,” drawn from the federal criminal code, to aliens facing deportation as aggravated felons.

On "rape as a weapon of war"

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

U.N. Security Council Resolution 1820, entitled “Women and peace and security” and adopted on June 19, 2008, can be seen as the culmination of a long effort to have sexual violence against women recognized as instrumental – rather than incidental – to war.

In its very 1st paragraph, Resolution 1820 noted what feminists had been explaining for many years, that rape when enacted as a “tactic” of war “can significantly exacerbate situations of armed conflict and may impede the restoration of international law.” Rape can be a weapon of war, an instrumental part of conflict. As a result it must be addressed as a serious crime and an impediment to peace.

It is this recognition of rape as a ‘weapon of war’ that interests me, and which I explore it in “Rethinking Rape as a Weapon of War”, soon to be published in, and available in full online at, the journal Feminist Legal Studies. Feminist legal academics and activists writing in the early-mid 1990s, argued for recognizing ‘rape as a weapon of war’ as a means to articulate the systematic, pervasive, and orchestrated nature of wartime sexual violence that marked it as integral rather than incidental to war. In this usage, rape as a weapon of war is seen as resulting from and produced through political, social and military contexts.

The recognition of ‘rape as a weapon of war’ appears to have been taken up in numerous legal and policy institutions, from the Security Council (above right) to the war crimes tribunals for Rwanda and the former Yugoslavia. But what happens to the meaning of ‘rape as a weapon of war’ in these legal settings?

In my review of the jurisprudence of the International Criminal Tribunal for Rwanda (up to December 2008), I found that the Chamber’s depiction of rape as an instrument of the genocide constrained both the types of sexual violence and the categories of victims that it was able to see. More profoundly, in the Tribunal’s usage, rape understood as a weapon of war positioned rape as an inevitable – almost ‘natural’ – part of conflicts seen as ‘ethnic’ or ‘nationalist’. Rape became, in effect, an instrument that ‘one side’ picks up and uses against the ‘other side.’

This approach, I argue, assumes that rape is simply always available as a weapon. In this maneuvre, moreover, the Tribunal’s characterization of rape as an instrument of the genocide has the effect opposite to what feminists intended. Considering rape ‘as an instrument of the genocide’ makes it difficult to ask critical questions; for instance: why the rapes happened; how the rapes might have been connected to various social relations and structures that predated the genocide; and what women did to negotiate and resist sexual violence.

Go On! "Gender, International Law & the New Administration"

(Go On! is an occasional item on symposia of interest) In this, our 1st joint post as Co-Chairs of WILIG, the Women in International Law Group of the American Society of International Law, we are delighted to announce WILIG's next event. Entitled "Gender Issues, International Law, and the New Administration," it will be held from 12 noon- 2 p.m. Thursday, July 2, at Tillar House, the ASIL headquarters located at 2223 Massachusetts Avenue, N.W., Washington, D.C.
This luncheon event will consider the positions of the Obama Administration on issues such as:

► Ratification of the Convention on the Elimination of All Forms of Discrimination Against Women;

► Combating trafficking in persons;

► "Gender architecture," the restructuring of the United Nations to allow better focus and attention to gender issues; and

► Need for followup action on Security Council Resolution 1820 (2008), "Women and peace and security," in order to combat sexual violence during armed conflict.

Two panelists from the U.S. State Department will lead the discussion. They are Ambassador Melanne Verveer (above right), Ambassador-at-Large for Global Women's Issues, and Ambassador Luis C. de Baca (left), Director of State's Office to Monitor and Combat Trafficking In Persons.

The event is free to ASIL members; $15 for all others. Registration and details here.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

Is it that coltan, the mineral that keeps our cell phones and computers in play, is more important than Congolese girls?

-- playwright-activist Eve Ensler (right), asking why so little's been done about brutalities and killings suffered by women in the last dozen years in the Democratic Republic of Congo. She posits unsettling answers in her Huffington Post op-ed, "War on Women in Congo."

Responding to Gender & Sexual Violence in the DRC

Readers interested in transitional justice and the Democratic Republic of Congo should keep an eye on the work of REJUSCO (Rehabilitation of the Justice System in the DRC), a multi-donor program aimed at restoring the rule of law, promoting accountability for war crimes committed in eastern DRC, and restoring faith in justice among the populace. REJUSCO is in the process of implementing an emergency program for improving accountability for gender and sexual violence in Eastern Congo. This will involve:

►The design & implementation of short-term courses on legal responses to gender and sexual violence, taking into account Congolese and international law;

► Judicial monitoring of ongoing relevant judicial proceedings;

► Participation in activities in local communities and refugee camps to increase awareness about sexual violence as well as available socio-legal and judicial mechanisms to respond to this phenomenon;

► Field research (under the direction of a team composed by an anthropologist and lawyers) on traditional justice responses to gender and sexual violence in local communities; and

► Analysis and commentary of relevant jurisprudence developed by Congolese courts.

REJUSCO is interested in partnering with IntLawGrrls and their readers in these efforts, and offers internships. More information is here.

Sexual Violence in the ICTR and ICTY: Successes and Disappointments

I have been thinking a lot recently about the progress made from the perspective of women’s distinctive experience of conflict by the ICTY and the ICTR, both of which are soon to complete their work. Although I am somewhat reluctant to engage in any kind of ‘accounting exercise’, where the ‘achievements’ and ‘disappointments’ are lined up against each other and compared, it strikes me that some kind of summarising exercise would be a good idea.
The good:
► (a) sexual violence was included in the statutes of the tribunals themselves following very concerted efforts by international NGOs, their success being what Janet Halley calls ‘governance feminism’ (see her latest article in the Melbourne Journal of International Law on this here);
► (b) significant numbers of women were involved in the running of the tribunals as chief prosecutor (Louise Arbour; Carla del Ponte), as judges (notably Navi Pillay (above) (photo credit), about whom IntLawGrrl Amy Senier also posts today, and Florence Mumba), and as other staff; and
► (c) sexual violence was recognised as the actus reus of other crimes, most notably we recognised in the ICTR that rape could be the actus reus of genocide (Prosecutor v. Akayesu) and in the ICTY that rape could be the actus reus of torture (Celebici Case).
The not so good:
► (a) female victims continue to suffer extreme distress and post-testimony ostracised and abuse after testifying before the tribunals; this can include being subjected to further sexual violence;
► (b) some decisions by the Office of the Prosecutor have been simply baffling, particularly in relation to whether to include sexual violence charges in indictments. Take, for example, the Akayesu indictment which included sexual violence charges only after the presiding judge (Judge Pillay) and NGOs intervened to ask the OTP to consider amending the indictment.
► (c) For quite some time (especially in the early 2000s) there was a clear prosecutorial policy of sidelining sexual violence charges: specialised investigative units were disbanded, clear cases where sexual violence should have been included in the indictment had no such charges and these decisions continue to have repercussions (the Lukic case is an obvious example -- IntLawGrrl Beth Van Schaack discusses it here).
A mixed record then, it is fair to say. Of course, there have been enormous advances and these continue to have positive ramifications in other international and hybrid tribunals (not least in the Special Court for Sierra Leone), and to ignore these would be churlish. But we should also be careful not to overstate progress; identifying the ‘must do better’ areas is vital to the continuing development of international criminal law.

ICC Prosecutor’s Application for Arrest Warrant for President al-Bashir of Sudan Highlights Rape and Sexual Violence as Evidence of Genocidal Intent

Yesterday, the New York Times reported that judges of the International Criminal Court had decided to issue a warrant of arrest for President Omar Hassan Ahmad al-Bashir (right) of Sudan. Today, the Court issued a statement indicating that "[n]o decision has yet been taken by the judges." Despite the confusion, it appears that the Court is likely to make a decision on the ICC Prosecutor’s application for the issuance of an arrest warrant some time this month. (Prior IntLawGrrls posts.)
The application made by Chief Prosecutor Luis Moreno-Ocampo (below left) contains 10 counts:
► 3 of genocide,
► 5 of crimes against humanity, and
► 2 of war crimes.
Even if the Court issues the arrest warrant, it is not clear whether the warrant will include all 10 counts. The counts of genocide, in particular, have been the subject of much debate. Indeed, several commentators have questioned whether the application presents sufficient evidence to support the legal characterization of the crimes committed in Darfur as genocide (see, for instance, the recent article by Alex de Waal).
Genocide is notoriously difficult to prove. Proving genocidal intent demands a showing that perpetrators not only targeted members of a protected group, but also that they did so specifically seeking to destroy the group, in whole or in part. It is generally not enough to show that an accused is aware that his acts will result in the destruction of the group; the accused must seek to achieve the destruction, in whole or in part, of the protected group. Recognizing the difficulty of proving genocidal intent, the ad hoc tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) have determined that, in the absence of a confession, genocidal intent can be inferred from other facts and circumstances, such as speeches or statements against the targeted group, acts of violence against cultural symbols associated with the group, other policies of discrimination against members of the group, and the brutality, scale and/or systematic nature of the atrocities against the particular group. Of course, when inferential evidence is relied upon to prove genocidal intent, the tribunals have cautioned that the

inference must be the only reasonable inference available on the evidence.

Although there may be disagreement as to what inferences can be drawn from the evidence presented by the Prosecutor in support of the arrest warrant application, one of the remarkable aspects about the application is that -- unlike the analysis of genocidal intent conducted in 2005 by the United Nations Commission of Inquiry (COI) tasked with investigating violations of international human rights and humanitarian law in Darfur -- it explicitly makes reference to pattern evidence of sexual violence as one of several factors that the Court should look to in assessing whether genocidal intent can be inferred. Indeed, in his submissions to the Court, the Prosecutor clearly stated that

the magnitude of the rapes and sexual assaults carried out by forces and agents under the control of Al-Bashir during attacks on villages and around IDP settlements and camps . . . indicates an intent to destroy the target group as such.

Although the COI had suggested an inference of genocidal intent was not warranted because, among other things, persons forcibly dislodged from their villages were not exterminated but rather "collected" in camps for internally displaced persons and allowed to receive humanitarian assistance, the Prosecutor has indicated that the attacks against the targeted group —particularly the widespread rapes — have continued in the camps, and that this suggests an intent not just to forcibly displace the targeted groups but, in fact, to destroy them. As he noted,

In view of the social stigma associated with rape and other forms of sexual violence among the [targeted groups], these acts [have] caused significant and irreversible harm, [not only] to individual women, [but] also to their communities.

Additionally, while the COI also supported its conclusion that genocidal intent was lacking by pointing to the fact that not everyone who was targeted was killed, the Prosecutor has argued —and the jurisprudence of the ICTY supports his position — that the failure to kill every member of the group does not necessarily negate other evidence of genocidal intent. To the contrary, the Prosecutor has argued, attacking the surviving members of the targeted group via, among other means, the infliction of sexual violence, is actually an efficient strategy to achieve the eventual destruction of the group, given that the "slow death" and disintegration of the group via these means has given rise to more muted international outrage than outright killings of members of the group might have engendered.
Although it is ultimately up to the Pre-Trial Chamber of the Court to determine whether the evidence is sufficient to support the issuance of an arrest warrant for genocide, the Prosecutor’s consideration of pattern evidence of sexual violence as potential evidence of intent should be commended. Indeed, although sexual violence has been recognized as a means by which to destroy a particular group (see landmark ICTR case of Prosecutor v. Akayesu), it has rarely been recognized as one of the factors that should be considered in assessing whether genocidal intent can be inferred. For instance, as alluded to above, despite finding that rapes had been used to terrorize, demoralize, and humiliate the targeted population in Darfur, the COI essentially ignored this evidence when making its assessment as to whether the facts supported an inference of genocidal intent. In light of how difficult genocidal intent is to prove, ignoring potentially valuable evidence of intent does a disservice to all who suffered under the perpetrators' genocidal scheme, including, of course, the victims of sexual violence themselves.

Look On! "Silence: Rape in Congo"

(Look On! takes occasional note of noteworthy films.)

For those who have not yet seen The Greatest Silence: Rape in the Congo, try to view this documentary by Lisa F. Jackson (below right). It won the Special Jury Prize at the 2008 Sundance Film Festival and has been broadcast in the US, including on HBO. You can see a video clip here.
Last week the Council on Foreign Relations hosted a screening, followed by a panel with filmmaker Jackson and Ambassador Atoki Ileka, the DRC's Permanent Representative to the United Nations. Isobel Coleman, Senior Fellow for U.S. Foreign Policy at the Council,, moderated.
From the vantage point of spreading the film's call for an end to impunity for rape, it was impressive to learn that the film was recently shown in the Congolese National Assembly. More than 600 people were there, including the president of the National Assembly, Vital Kamerhe, the president of the Senate, Kengo Wa Dondo, the deputy prime minister, Nzanga Mobutu, and the gender minister, Marie Ange Lukiana Mufankolo. President Joseph Kabila was absent.
Perhaps even more impressive, throughout January The Greatest Silence is airing on Congolese National Television in three different languages.
When watching the film, pay particular attention to Major Honorine Munyole, quoted below in a separate post, as she goes about her rounds and raises her four children. Munyole is the chief -- indeed, the only member -- of the sex crime unit of the Congolese National Police. Also, for those looking for results-oriented charitable deductions, consider the International Rescue Committee's support of the Panzi Hospital for rape victims.

(credit for photos at left and above right)

'Nuff said

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

'The woman is the mother of a nation. He who rapes a woman rapes an entire nation.'

-- Major Honorine Munyole of the National Police of the Democratic Republic of Congo, described here as "a one-woman Special Victims Unit investigating sex crimes." Munyole's comment appears in the film that IntLawGrrl Lucy Reed reviews above. (credit for photo of Munyole, far left, with rape survivors and counselor at Centre Olame Bukavu, DRC)

UN Convention on the Prevention on Punishment of Genocide

Today marks the 60th anniversary of the introduction of the UN Convention on the Prevention and Punishment of the Crime of Genocide. The Convention contains an absolute prohibition on genocide, which is also long recognised as a jus cogens norm in international law. Genocide is defined in Article 2:

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

The need for a Convention on the crime of genocide was, of course, starkly illustrated by the Holocaust, in which Jews, persons with disabilities, Roma, homosexuals and others suffered enormous harm and loss. Unfortunately, in the past 60 years, the absolute prohibition of genocide has not been sufficient to prevent other genocides from occurring. Scholarship on genocide is constantly evolving, and one of the most interesting areas of current and innovative inter-disciplinary work relates to gender, sexuality and genocide. This has arisen in a number of ways. Adam Jones has been instrumental in the development of ‘gendercide’ as an area of scholarship, focusing mostly on the targeting of men of military age in genocidal campaigns. Other scholars, myself included, have focused on the use of sexual violence against women as part of the evolving law and scholarship of genocide.

The conflicts in the Former Yugoslavia and Rwanda in the 1990s were largely characterised by the extensive use of sexual violence and exploitation as a weapon of war and a genocidal method. Although sexual violence as part of armed conflict was not a new phenomenon, and indeed continues to occur, a number of matters suggested that any formal legal response taken by the international community to this violence would address the particular experiences of women and girls in these conflicts.

Firstly, the widespread use of sexual violence and exploitation in both cases had received sustained media attention and been the subject of extensive commentary by non-governmental organisations. Secondly, the international community’s record on addressing women’s particular sexualised experiences of women in conflict was especially weak. Thirdly, since the failures of the Nuremburg Tribunal and the International Military Tribunal for the Far East to address women’s experiences of sexual violence and exploitation a corpus of law on women’s human rights had been developed with a particular emphasis on ensuring that sexual violence and exploitation were addressed by law and were not consigned to the unregulated realm of the ‘private’.

As a result of this context, when the Security Council established the ad hoc International Criminal Tribunals for the Former Yugoslavia and Rwanda the inclusion of sexual violence within the tribunals’ statutes was to some extent to be expected. That notwithstanding, experiences at both international and domestic levels taught that the mere inclusion of sexual violence and exploitation within courts’ and tribunals’ formal jurisdiction was no guarantee of effective prosecution of these crimes, or of the provision of an adequate or real remedy to women and girls affected by such violence. Rather, sustained attention to such crimes by both the prosecutor and the tribunals themselves, together with the creation of a juridical climate within which women’s stories can be told and heard, remain have been somewhat absent.

As has been well documented here on IntLawGrrls, particularly in the posts of Beth Van Schaak (posts here) difficulties continue to arise in relation to the prosecution of sexual violence before the Yugoslav and Rwandan tribunals. However, on this day of commemoration we can, perhaps, choose to remember the momentous decision, handed down by Judge Pillay (now UN High Commissioner for Human Rights) in Prosecutor v Akayesu, where for the first time an international tribunal recognised that sexual violence can be constitute the actus reus of the crime of genocide in respect of measures designed to prevent births in the targeted group (para. 507)

For purposes of interpreting Article 2(2)(d) of the Statute, the Chamber holds that the measures intended to prevent births within the group, should be construed as sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes and prohibition of marriages. In patriarchal societies, where membership of a group is determined by the identity of the father, an example of a measure intended to prevent births within a group is the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother's group.

Vagaries of witness protection before the ICC

Germain Katanga and Mathieu Ngudjolo Chui (right), both hailing from the Democratic Republic of Congo, are two of the accused awaiting trial before the International Criminal Court. The two are implicated in attacks against civilians in the Ituri region of the DRC while they were members of ethnically based militia. (Katanga began as a military leader of a predominantly Ngiti combatant group, the Force de Résistance Patriotique en Ituri. He was eventually appointed Brigadier-Général of the Forces Armées de la République Démocratique du Congo (FARDC) by the President of the Democratic Republic of Congo, Joseph Kabila. Chui also eventually became a member of the FARDC when the militia group to which he belonged was integrated into the armed forces. See here for a series of concise posts on the history of the world war being waged in the Congo.) (photo credits)

The Prosecution originally sought to charge the two with murder/willful killing, inhumane acts/inhumane treatment, sexual slavery, and rape (as crimes against humanity and war crimes), in addition to the war crimes of using child soldiers in combat, committing outrages upon personal dignity, intentionally directing an attack against a civilian population, pillage, and destruction of civilian property. The pre-Trial Chamber recently confirmed all but a few charges (those for inhumane acts and outrages upon dignity).

The gender crime charges stem from allegations that civilian women were raped and forcibly taken to military camps, where they were given as “wives” to their captors, or were imprisoned in holes in the ground where they would be raped by other prisoners or combatants. The defendants were indicted as principals (co-perpetrators) to the crimes committed by their subordinates pursuant to a common plan to commit such crimes. The theory of responsibility is one of co-perpetration, where the defendants exercised “joint control” over the crime as a result of being in a position to make an “essential contribution” to it. Notably, neither defendant was charged under Article 28 of the ICC Statute, which sets forth the superior responsibility doctrine; this failure to charge further contributes to the desuetude of the doctrine in international criminal law.

Judge Anita Ušacka (Latvia) (left) partially dissented from the confirmation decision. In particular, she argued that the Prosecutor’s evidence was not sufficiently strong to establish “substantial grounds to believe” that the suspects are criminally responsible for the crimes of sexual violence (the standard necessary to confirm the indictment pursuant to Article 61 of the ICC Statute). In her estimation, the evidence did not suggest either
► that the suspects intended for rape and sexual slavery to be committed during the attack in question, or
► that the suspects would know that these acts would be committed “in the ordinary course of events.”
She reasoned that general evidence that crimes of rape and sexual slavery were committed throughout Ituri is insufficient to infer the suspects’ intent and knowledge that the particular crimes charged would occur or had occurred. Rather, she suggested, there was some evidence that the defendants actually took steps to punish individuals who had abducted women of their own ethnicity.

In her analysis, Judge Ušacka seems to have fallen sway to the misperception that acts of sexual violence committed during armed conflicts or repression are simply opportunistic or private crimes reflecting personal motives and desires that are unconnected to, or simply capitalizing upon, the prevailing state of war. Rather, as Security Council Resolution 1820 confirms, such crimes are integral to any armed conflict, genocide, or campaign of ethnic cleansing rather than as an isolated or peripheral phenomenon. Indeed, gender violence is regularly employed to exacerbate other forms of violence and repression. Where women are being kept in detention with male guards in situations of ethnic conflict, we now know that it is inevitable that they will be sexually assaulted.

Although they squeaked by the confirmation stage, the sexual violence charges barely made it into the Prosecutor’s Charging Document at all. In connection with the confirmation of the indictment against the two defendants, the Prosecutor had originally requested protective measures from the Registry for two witnesses whose testimony was central to the sexual violence counts. The request was, however, rejected by the Registrar. Nonetheless, the Prosecutor, without authorization, arranged for the preventative and temporary relocation of two witnesses for their safety, citing his obligations to ensure the security of witnesses under Article 68(1) of the Statute. That Article sets forth the duty of the Court to take appropriate protective measures for the safety, well-being, dignity, and privacy of victims and witnesses and obliges the Prosecutor in particular

to take such measures particularly during the investigation and prosecution of such crimes.

The presiding judge, Sylvia Steiner (Brazil) (left), ruled that the Prosecutor had exceeded, and indeed misused, his mandate in unilaterally relocating witnesses in opposition to the competent ICC organ—the Registry. At the same time, she conceded that there may be “exceptional circumstances” involving “a serious threat of imminent harm” related to a witness’s cooperation with the Court (para. 35) in which some preventative relocation might be allowed. Given that these witnesses were in effect “unprotected” and thus at risk, she ruled that even redacted or summary versions of the witnesses’ testimony could not be admitted into evidence. Judge Steiner also strongly criticized the Registrar for refusing protective measures with respect to a particular witness by, in effect, raising the bar for protection to require proof of a concrete threat, and ordered the witness’s inclusion within the protection program.


The impasse was eventually resolved when the witnesses were relocated by the Registrar, which opened the way for the reintroduction of the sexual violence charges. The case thus proceeds with these charges intact.

Sexual Violence Before the ICTR: An Object Lesson for the ICC

We’ve blogged before (e.g., here, here, here, here, and here) on the mixed track record for the prosecution of sexual violence in international criminal law.

The experience of the International Criminal Tribunal for Rwanda (ICTR) (above) provides a forceful object lesson for the International Criminal Court (ICC) and other international criminal law tribunals into the ways in which crimes of sexual violence can be poorly- or under-prosecuted and thus rendered invisible. Although gender violence in Rwanda did not receive the levels of media attention focused on similar crimes committed in the former Yugoslavia, the Rwandan statistics—inherently approximate—are stunning. Estimates range from 250,000 to 500,000 rapes during the short period of the genocide (April-June 1994), promoting the Special Rapporteur of the Commission on Human Rights to observe that

Rape was the rule and its absence the exception.

Rape in Rwanda was also accompanied by sexual mutilation and torture, and women and girls were often literally raped to death by perpetrators wielding machetes, sharpened sticks, broken bottles, and other implements. By some accounts, all female survivors—including very young girls—in Rwanda were raped or sexually assaulted during the 100 days of the genocide. See Human Rights Watch, Shattered Lives: Sexual Violence during the Rwandan Genocide and its Aftermath (1996).

Yet, the results of the cases before the ICTR do not reflect the high levels of gender violence in Rwanda during the genocide. In fact, the systemic lack of gender violence charges and high numbers of acquittals for what charges were brought generates the opposite impression. This disconnect reflects the many ways in which gender justice can be neglected or sidelined in international criminal law where gender violence is not central to a prosecutorial strategy.

A recent chapter in this saga has occurred in the Muvunyi (left) case. (Relevant decisions available here). A few weeks prior the start of trial, the prosecution sought to withdraw the rape charges altogether on the grounds that witnesses could not be traced and others refused to testify. The prosecution’s decision caused an uproar in Rwanda; even Rwanda’s representative to the ICTR criticized the decision.

The Trial Chamber denied the prosecutor’s request to withdraw the rape charge on the grounds that

• the Prosecution had not provided sufficient grounds upon which to reconsider the confirmation of the original indictment and
• the Defense had already expended time and resources preparing to defend the charges.

The Trial Chamber also rejected other proposed amendments amounting to new charges as prejudicial where the prosecution could not justify the delay in seeking the changes. The Trial Chamber instructed the prosecution that it need not amend the indictment; rather, it could simply present no evidence at trial and take an acquittal.

At trial, however, the prosecution managed to locate and present the testimony of three rape victims, whose harrowing testimony was deemed reliable by the Trial Chamber. None of the witnesses, however, was raped by the specific group of subordinates alleged in the indictments. Accordingly, the defendant was acquitted on these counts.

Both sides appealed, with the prosecution alleging error in the rape acquittals. In August 2008, the Appeals Chamber, in an as-yet unpublished decision, quashed the original convictions and ruled that the defendant should be partially retried on the incitement to genocide count pursuant to Rule 118(C), because the Trial Chamber did not adequately state the reasons for his conviction. Once again, rapes of Rwandan women are un-redressed.

Although it is largely too late for the women of Rwanda, the ICC—whose constitutive statute contains groundbreaking structural, procedural, and substantive provisions to ensure gender justice—must generate better results for women victims elsewhere. Fortunately, in several pending indictments, the Office of the Prosecutor has demonstrated an early commitment to ensuring gender justice, suggesting that the missteps, carelessness, and neglect characterizing gender justice before the ICTR may not be repeated before the ICC.