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. The ICC determined the key elements of such crimes against humanity are: (i) an attack against civilians who were the primary object of the attack; (ii) widespread or systematic attacks with acts of violence having an organised nature; (iii) attacks committed pursuant to a State or an organisational policy; (iv) a nexus between the individual act and the attacks; (v) the organizer intended and had knowledge of the attacks.
Women and Justice: Court: International Criminal Court
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. In Lubanga the ICC advanced this approach by emphasising that the court should consider the needs of victims of sexual or gender-based violence and prioritize vulnerable victims (especially when plastic surgery or HIV treatments are necessary) and severely traumatized children. The ICC should also grant reparations without discrimination on grounds of “gender, age, race, colour, language, religion or belief, political or other opinion, sexual orientation, national, ethnic or social origin, wealth, birth or other status.” In fact, reparations should address any underlying injustices and avoid replicating discriminatory practices and the further stigmatisation of victims.
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. He was also found guilty as an accessory to murder constituting a crime against humanity. However, he was acquitted on the charges of rape and sexual slavery committed by the PRF forces because the crimes could not be attributed to him; it could not be proved that the crimes were common practice among the combatants. Despite Mr. Katanga’s acquittal, this case is particularly significant as it was the first case in which crimes of sexual violence, including rape and sexual slavery, were charged.
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. Pursuant to Rule 85 of the Rules of Evidence and Procedure, victims include both (i) individuals who have suffered harm as a result of the commission of a crime within the ICC’s jurisdiction, and (ii) organizations and institutions that have suffered harm to their property. Due to the large number of individuals that generally are victims of the crimes prosecuted by the ICC, the TFV is better placed than the ICC to effectively support such victims. In fact, the TVF can deal with victims beyond those participating in the ICC proceedings, can consult with victims, and can use voluntary contributions to assist victims. For instance, the TVF is providing support in northern Uganda and DRC by supporting gender-specific projects, such as reproductive health services, schools for girls, trauma-based counselling, and reconstructive surgery.
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. In cases of sexual violence, according to Rule 70 consent cannot be inferred where the victim was under coercion, incapable of giving genuine consent, or by reason of silence or lack of resistance. Finally, under Rule 71 evidence of the prior or subsequent sexual conduct of a victim or witness is generally inadmissible in order to prevent attempts to undermine or discredit victims of sexual violence.
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. The crimes committed by the armed forces must have been a result of the failure of the commander to properly exercise control over them. In addition, there must be evidence beyond any reasonable doubt that the commander is responsible and the crimes were sufficiently widespread so that it is evident that they occurred during the ordinary implementation of the military action for which the commander is responsible. The goal of this provision is to encourage commanders and superiors to prevent effectively the perpetration of crimes by their forces.
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. Any other form of sexual violence constituting a grave breach of the Geneva Conventions can also amount to a war crime: e.g., torture, wilfully causing great suffering, and the taking of hostages. Similarly, all types of war crimes (for instance, torture) may contain gender elements. Article 8 was interpreted by the ICC in Prosecutor v. Katanga and Ngudjolo. In that case, although the crimes could not be attributed to Katanga, the ICC found that forcible nudity constitutes an outrage upon personal dignity, which amounts to a war crime under Article 8(2)(b)(xxi).
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. To amount to a crime against humanity, it must be committed “as part of a widespread or systematic attack directed against a civilian population.” Hence, this provision also enables the prosecution of organizers of human trafficking. For example, the Prosecutor is considering an investigation in Libya and is urging States to prosecute perpetrators. The Prosecutor is particularly concerned about migrants, in particular women and children, that are held in detention centres in Libya, where there are allegations of sexual violence, forced labour, human trafficking, and of migrants being sold in a slave market.
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. For example, the Prosecutor has found a reasonable basis to believe that gender-based persecution has been committed in Nigeria by Boko Haram. The Prosecutor’s Office has identified that, by reason of their religion or for attending school, Boko Haram has carried out sexual violence against women and girls, including abductions, sexual slavery, and forced marriages. This offence is significant in being the only sexual and gender-based crime that requires discriminatory intent, as the Prosecutor must prove the crime was based on gender grounds. The crime is also an important recognition of the need to combat impunity for systematic persecutions on the basis of gender.
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. This legal instrument is also novel in prescribing gender-based crimes as the basis of war crimes or crimes against humanity committed during armed conflicts. In particular, the Statute gives the ICC jurisdiction over gender-based crimes if they constitute acts of genocide. In this case the crimes, such as rape, can be an integral part of the destruction inflicted upon the targeted groups and may be charged as genocide. The Prosecutor must further apply and interpret the Statute in line with internationally recognised human rights, including women’s human rights and gender equality. The States Parties should also consider the need to appoint judges with legal expertise on violence against women or children.