International Criminal Court

The Rules of Evidence and Procedure (“Rules”) are a subordinate instrument for the application of the Rome Statute and to protect the rights of women in relation to sexual violence cases.  For instance, under Rule 63(4) corroboration is not required to prove any crime within the ICC’s jurisdiction, including crimes of sexual violence.  This is significant given the challenges faced in obtaining evidence in respect of sexual and gender-based crimes, and the physical and psychological impact on the victims.

The Trust Fund for Victims (“TFV”) implements reparations when the ICC orders an award and is significant in recognizing the importance of reparations in achieving justice for victims.  Under Article 79 of the Rome Statute, the ICC may order that money collected through fines or forfeiture are transferred to the TFV and used to benefit victims of crimes and their families.

The intention behind the Rome Statute of 2002 (“Rome Statute” or “Statute”) in establishing the International Criminal Court (“ICC”) is to prosecute the most serious crimes of international concern and to end impunity.  The Rome Statute is significant in being the first international criminal law instrument that recognises forms of sexual violence, such as rape, sexual slavery, enforced prostitution, and enforced sterilization, as distinct war crimes.

Article 28.  Responsibility of commanders and other superiors.  Under this provision, military commanders are held criminally responsible for crimes committed by armed forces under their effective command and control, such as rape and any sexual violence used in war.  This applies to instances where the superior knew or should have known about such crimes, or failed to take all necessary and reasonable measures to prevent their commission.

Article 7(1)(c).  Enslavement as a crime against humanity. This provision is significant in identifying human trafficking as a crime against humanity.  For the ICC to have jurisdiction, the perpetrator must exercise powers demonstrating ownership, such as purchasing, selling, lending, or bartering.  The definition also requires the imposition of “a deprivation of liberty,” which may refer to forced domestic labour or the reducing of a woman to a servile status.

Article 7(1)(h).  Persecution on the basis of gender. Under the Rome Statute, persecution on the basis of gender is specifically included as a crime against humanity.  This means that the ICC has jurisdiction over crimes involving the intentional and severe deprivation of fundamental rights contrary to international law against a group targeted on the basis of gender.  Although the ICC has not yet brought a prosecution in respect of this crime, there are crimes under preliminary examination.

Article 8.  Sexual and gender-based crimes as war crimes.  Through its inclusion of sexual and gender-based crimes as distinct war crimes, this provision recognises that gender-based violence is routinely committed in the context of armed conflicts.  Under Article 8(2)(b)(xxii), rape, sexual slavery, enforced prostitution, forced pregnancy, and enforced sterilization are acts amounting to war crimes.

Mr. Katanga was the leader of the Patriotic Resistance Force (“PRF”) in Ituri, an opposition group in DRC, and was accused of war crimes and crimes against humanity in relation to an attack against the village of Bogoro.  The Pre-Trial Chamber found that the PRF forces committed acts of rape and sexual slavery:  Mr. Katanga’s combatants abducted, sexually enslaved, and physically abused women.  Mr. Katanga was found guilty as an accessory to war crimes on four counts: i.e., murder, attacking a civilian population, destruction of property, and pillaging.

This case concerned the war crimes of enlisting and conscripting children in DRC.  Under Article 75 of the Rome Statute, in determining reparations (including restitution, compensation and rehabilitation), the ICC should consider the scope and extent of any damage and the harm caused to the victims.  The Prosecutor encourages a gender-inclusive approach, promoting reparations that contribute to advance gender equality.

Under Article 7 of the Rome Statue, sexual and gender-based crimes can amount to crimes against humanity.  Although terminated by the ICC because of insufficient evidence, this case clarifies the principles for prosecuting these crimes.  Charges for the crimes against humanity of murder, forcible transfer of population, and persecution were brought due to the post-election violence in Kenya, where an attack allegedly targeted ethnic groups perceived as supporters of the Party of National Unity.