#16 Days: When sexual and gender-based crimes are committed in the context of genocide, crimes against humanity and war crimes

Fatou Bensouda, Prosecutor of the International Criminal Court (ICC)  UN Photo/Rick Bajornas
Fatou Bensouda, Prosecutor of the International Criminal Court (ICC)
UN Photo/Rick Bajornas

Sexual and gender-based crimes are difficult to prosecute and secure convictions for under any conditions. When they are committed as acts of genocide, crimes against humanity, or war crimes — and are dealt with as part of the international justice system — the situation is even more fraught and complicated. However, the past year has seen positive steps taken toward improving the documentation, investigation, and prosecution of such crimes.

When individual countries lack the capacity to do so, the International Criminal Court (ICC).1 investigates and prosecutes sexual and gender-based crimes within the context of genocide, crimes against humanity and war crimes. In fact, six of the eight situations currently under investigation at the Court include charges for gender-based crimes. However, there have yet to be any convictions on sexual or gender-based charges (in fact, there has only been one conviction to date on any charges whatsoever).2

The Prosecutor of the ICC, Fatou Bensouda, has previously recognized the importance of appropriately addressing sexual and gender-based crimes — and the challenges involved in the effective investigation and prosecution of them — by making it one of the key strategic goals in the Office of the Prosecutor (OTP)’s Strategic Plan for 2012-2015. (It is strategic goal three: “enhance the integration of a gender perspective in all areas of our work and continue to pay particular attention to sexual and gender based crimes and crimes against children.”)

In June of this year, Bensouda published a Policy Paper on Sexual and Gender-Based Crimes. The policy paper explicitly acknowledges the gravity of sexual and gender-based crimes and acknowledges the need to apply a gender analysis to all crimes within the Court’s jurisdiction. The policy paper is very specific in noting that it wishes to identify how the crimes it investigates are related to inequality between women and men, as well as differential power relationships. There is also a recognition of the challenges that are particular to such crimes, including under- or non-reporting, the stigma victims face, and limited investigations and the resulting lack of evidence.

Also in June, in London, the UK government convened a Global Summit to End Sexual Violence in Conflict. At the Summit, an International Protocol on the Documentation and Investigation of Sexual Violence in Conflict, subtitled “Basic Standards of Best Practice on the Documentation of Sexual Violence as a Crime under International Law” was presented. The protocol includes standards for preliminary considerations, planning, identifying survivors and witnesses, interviewing and physical and documentary evidence.

There have been concerns in the past regarding the balance struck  between the ICC’s push to get cases to trial in a timely manner and persecuting the full range of crimes that may have taken place in a given situation. Too often, it has been felt, gender-based crimes have not been thoroughly pursued as a result of the difficulties in investigation and evidence-gathering peculiar to these types of crimes. It can only be hoped that the best practices of evidence gathering promoted by the Protocol (and it’s future revisions) will be more universally adopted — and thereby improve the ICC’s capacity to successfully prosecute sexual and gender-based crimes.

The Policy Paper is also clearly intended to address this, although how much of an effect it will have in practice is still open to debate.

For right now, closing arguments were heard this fall in the ICC’s case against Jean-Pierre Bemba, the former Congolese vice-president, who has faced charges of crimes against humanity and war crimes for events that took place in the Central African Republic. The case is significant both for focusing on rape as a weapon of war and of prosecuting Bemba, not for ordering the mass rapes and sexual assaults, but for not stopping them. (This is the first time the Court has applied this ‘command responsibility’ concept to charges.) Brigid Inder, the executive director of the Women’s Initiatives for Gender Justice, is quoted in a recent article from Al Jazeera, as saying, “We hope this case will change that record and usher in a new era of accountability for sexual violence before the ICC.” A verdict is expected next year.

Although there have been previous charges dealing with sexual violence, they have failed to result in convictions. We will have to wait and see if the Bemba case results in one. But with the introduction of new tools — and greater interest and attention on the issue — we can hope that future prosecutions will arise from a thorough gender analysis combined with improved investigative and evidence-gathering techniques.



Gender Report Card on the International Criminal Court 2013

Policy Paper on Sexual and Gender-Based Crimes (International Criminal Court. Office of the Prosecutor)

Strategic Plan for 2012-2015 (International Criminal Court. Office of the Prosecutor)

International Protocol on the Documentation and Investigation of Sexual Violence in Conflict

Women’s Initiatives for Gender Justice



1 The International Criminal Court (ICC) is an international organization separate from the United Nations system and based in The Hague. It is the first permanent international criminal court and deals with the most serious crimes — genocide, crimes against humanity, and war crimes — when countries are unable to do so. Previous trials and tribunals only dealt with particular situations in specific locations and time periods (for example the Nuremberg trials after the Second World War and the International Criminal Tribunal for Rwanda after the genocide there). The founding document of the ICC, the Rome Statute, came into force in 2002 and has been ratified by 122 countries to date.

2 A good summary of the gender dimensions of the specific situations and cases at the Court is found in the Gender Report Card on the International Criminal Court produced each year by Women’s Initiatives for Gender Justice . The Report Card also addresses issues faced by victims and witnesses, as well as structural and organizational issues within the ICC.

Monique Cuillerier is the Membership & Communications Director of the World Federalist Movement – Canada. A version of this article appears in the upcoming issue of WFMC’s newsletter, Mondial.

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