The Failure of the International Criminal Court to Prosecute Sexual and Gender-Based Violence

Natasha Godsiff

Introduction

The 1998 Rome Statute of the International Criminal Court (ICC Statute) is a crucial piece of legislation for the advancement of women’s rights in explicitly recognising and condemning sexual and gender-based violence. It refers to any act that is perpetrated against a person’s will and it is based on gender norms and unequal power relationships. Sexual and gender-based violence can target any gender, yet women are disproportionately affected. These crimes are fundamentally a form of gender discrimination, effectively nullifying the rights of females to exercise their human rights. Despite this step forward on paper, the victims are often left unheard and lack access to justice in practice. This article will take a women’s-centred analysis of sexual and gender-based violence during armed conflict, tracing the legal landscape of such crimes and outlining the failures of the ICC in holding States accountable. It will be concluded that reform is necessary to challenge the deeply ingrained subordination and violence perpetuated against women.

Sexual and Gender-Based Violence

Traditionally, rape was dismissed as a “natural and inevitable” aspect of armed conflict. While other abuses, such as murder and torture, have long been denounced as war crimes, rape has been downplayed as an inevitable consequence of sending men to war. Rape was merely perceived as a crime of “honour”, rather than a breach of law that necessitated international attention. Recent conflicts, such as the Yugoslav Wars, demonstrate rape being employed as a “weapon of war” in campaigns of genocide.

The inherent gender-specific character of rape - being perpetrated by a man against a woman - has led to the narrow portrayal of these crimes as sexual or personal in nature. The issue of sexual and gender-based violence in conflict is subsequently depoliticised and results in it being ignored as a war crime. Sexual and gender-based violence is often dismissed as private, “opportunistic” crimes of rebel soldiers which are not officially sanctioned, subsequently obscuring the role of military and political leaders in the perpetuation of these crimes. These misconceptions disregard the pervasiveness of sexual and gender-based violence in armed conflict. A recent UN report found that 1,429 incidents of gender-based violence were reported in Democratic Republic of Congo within one 12-month period, with 68% of survivors being children. In Yemen, there has been a 70% increase in reports of sexual violence, including rape. Yet, the exact prevalence of sexual and gender-based violence is difficult to ascertain, particularly due to underreporting for fear of intimidation and stigmatisation of survivors. In fact, the UN estimates that in conflict zones, for every rape that is reported, between 10 and 20 rapes are unreported.

The increasing attention paid to sexual and gender-based violence risks isolating the issue from other abuses occurring during armed conflict. The reality, however, is that sexual violence often occurs in connection with other forms of violence. In many instances, women are raped as men are beaten or forced into hard labour. In the 1992 case of Jahura Khatu, after her husband was taken by soldiers for forced labour, Khatu and three other women were marched to a nearby military camp where they were raped repeatedly for twenty-four hours. Once the soldiers are satisfied, women are often murdered or left to die by their attackers. Sexual and gender-based violence has also been used to displace “undesirable” groups from communities and to seize contested land and other resources. In South Sudan, for example, soldiers raped women and girls as part of a campaign to drive opponents out of southern Unity State. It is therefore clear that sexual and gender-based violence rarely occurs as an isolated form of abuse, and will often be utilised to achieve a further military goal.

The Failure of the ICC

The end of the 20th century proved to be a turning point where much deserved and long overdue international attention was given to crimes of sexual and gender-based violence. The ICC Statute has been praised for expressly recognising sexual violence and categorising gender persecution as a crime against humanity. The Statutes of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) included rape as a “crime against humanity”. The 1998 prosecution of Jean-Paul Akayesu before the ICTR held that rape and sexual violence constituted a form of “genocide”, and, in 2001, the ICTY widened the definition of “slavery” to include sexual slavery. Several human rights documents, such as the Convention on the Elimination of Discrimination against Women (CEDAW) General Recommendation No. 19, seek to uphold women’s rights through equal access to justice under humanitarian norms and international criminal law.

Nevertheless, these developments are limited. The international criminal law engages sexual and gender-based violence not because it is a crime of violence against women, but because it is an assault on the community. The violation of a woman’s body is therefore “secondary to the humiliation of the group” and “relegates women to the role of symbolic embodiments of community”. This construct of sexual and gender-based violence creates a pattern of gender inequality which perpetuates a gender-biased system of prosecution and accountability in the ICC.

In its 15-year history, only eight cases in this area have reached the trial stage, and only two have led to convictions. In the investigation of crimes, there is a perception that sexual and gender-based violence is too difficult to investigate, due to victims being unreliable or unlikely to testify. In the Lubanga case, for example, the need for expediency led the Prosecution to pursue child soldier charges, instead of gender-based violence charges. The result is the silencing of gender-based narratives of victimisation behind the guise of other war crimes.

Another notable case is the prosecution of Uhuru Muigai Kenyatta in 2014. Despite reasonable grounds to believe that he was responsible under article 25 of the ICC Statute for rape and other forms of sexual violence, the Prosecutor had no alternative but to withdraw charges given the refusal for the Kenyan government to cooperate. Similarly, in 2015, the ICC brought charges against Simone Gbagbo for four counts of crimes against humanity (including rape and other sexual violence) committed in Côte d’Ivoire in 2010 and 2011. After a refusal to transfer Gbagbo to the ICC, she was granted amnesty by the High Court of Cote d’Ivoire. The strict impunity for crimes during armed conflict leaves many unanswered questions about the Government’s role in such atrocities and deprives the victims of an opportunity to obtain justice.

The issue is exacerbated by the fact that many victims will never gain access to the justice system in the first place. It is common for victims to express reluctance to report the violence owing to stigma, rejection by their families and communities, and lack of confidence in the justice system. Survivors often require immediate healthcare and psychological support, but, in many countries, post-abuse support is unavailable or insufficient. Even where support is available, survivors often do not seek help due to fear of stigma and community pressure, or simply lack of awareness about services. The limited capacities for investigating sexual and gender-based violence in conflict, in conjunction with the deeply rooted gender bias against women, can impede the effectiveness and sensitivity of investigative and judicial authorities.

The Need for Reform

The prosecution of sexual and gender-based violence has been identified as a key priority for the International Criminal Court (ICC). Yet it is increasingly evident that the current prosecutorial landscape fails to address the ICC’s aims of accountability and deterrence. The ICC must rectify the flaws and inconsistencies within its approach in order to advance the prosecution of these crimes. These advancements are “critical to the process of empowering victims, marginalising perpetrators, recognising the severity and gravity of sexual violence, eliminating the historic misunderstanding of rape and sexual violence, and contributing to the elimination of sexual violence altogether.”

The primary consideration must be the needs of the survivors. Victims must have access to justice, protection and support before, during and after the trial. Measures may include creating specific victim and witness protection units to encourage participation in the trial. The mechanisms for reporting sexual and gender-based violence must be strengthened, and awareness increased in an endeavour to reduce the stigmatisation of these crimes. Perpetrators must be charged with the full range of their crimes, instead of side-lining gender-based violence for easier-to-prove offences. A broader understanding of the political function of rape as a military strategy is necessitated for adequate remedies. Reparations must be integrated into accountability mechanisms, and States should consider how to support reparations initiatives globally.

Crucially, the prevention of future cases of sexual and gender-based violence requires the advancement of substantive gender equality before, during and after conflict. This includes women’s full and effective participation in political, economic and social life and ensuring accessible and responsive justice and security institutions. There has been a “profound systemic failure to recognise that sexual violence is, at its core, an instrument of the subordination of women.” The only way forward is to promote equality for women and to ensure that sexual and gender-based crimes are given equal status to other crimes under the ICC Statute.

Conclusion

Although the international response to sexual and gender-based violence has improved in recent decades, the limited prosecutorial response of the ICC fails to stand up to scrutiny. The situation remains inauspicious whilst there is persistent stigma attached to these crimes, a lack of understanding of the complexity surrounding the motivations of sexual violence, and a reluctance to reform the investigative process to make it more appropriate for sexual violence cases. The unfortunate consequence for women is that they lack access to justice, their narratives remain unheard, and they rarely receive reparations for the abuse that they have suffered. The challenges and inconsistencies within the ICC’s approach must be effectively addressed to meet the increasing demand for accountability for such crimes, and to promote gender equality under norms of humanitarian and international criminal law.

References: 

1 Rome Statute of the International Criminal Court, Jul. 17, 1998, 2187 UNTS 3

2 UNHCR. (n.d.). ‘Sexual and Gender Based Violence’. Retrieved from: https://www.unhcr.org/uk/sexual-and-gender-based-violence.html [Accessed 30/09/2020]

3 Shackel, R. (2019). ‘International Criminal Court Prosecutions of sexual and gender-based violence: challenges and successes’. In: Shackel, R. & Fiske, L. (eds), Rethinking Transitional Gender Justice; Transformative Approaches in Post-Conflict Setting, Springer, 187

4 Green, L. (2011). First-Class Crimes, Second-Class Justice: Cumulative Charges for Gender-Based Crimes at the International Criminal Court. International Criminal Law Review, 11(1), 529

5 Thomas, D. and Regan E. (1994). Rape in War: Challenging the Tradition of Impunity. SAIS Review, 14(1), 82-83.

6 Thomas and Reagan, 83

7 SáCouto, S. and Cleary, S. (2009). The Importance of Effective Investigation of Sexual Violence and Gender-Based Crimes at the International Criminal Court. American University Journal of Gender, Social Policy & the Law, 17(2), 337–362

8 Lund, G. (2019). ‘The hidden victims of sexual violence in war’. Retrieved from: https://www.warchild.org.uk/whats-happening/blogs/hidden-victims-sexual-violence-war [accessed 30/90/20]

9 Human Rights Watch. (1992). Burma: Rape, Forced Labor, and Religious Persecution in Northern Arakan. Asia Watch, 4(13), 6-7

10 United Nations Secretary-General. (2019). Conflict-Related Sexual Violence, S/2019/280. Retrieved from: https://www.un.org/sexualviolenceinconflict/wp-content/uploads/2019/04/report/s-2019-280/Annual-report-2018.pdf

11 Grey, R. (2014). Conflicting Interpretations of ‘Sexual Violence’ in the International Criminal Court. Australian Feminist Studies, 28(81), 273

12 Statute of the International Criminal Tribunal for the former Yugoslavia, S.C.Res.827, U.N.Doc.S/RES/827 (May 25, 1993), Art. 5(g); Statute of the International Criminal Tribunal for Rwanda, S.C.Res.955, U.N.Doc.S/RES/955 (Nov. 8, 1994), Art. 3(g)

13 Sellers, P. (2007). The Prosecution of Sexual Violence in conflict: The Importance of Human Rights as Means of Interpretation, Office of the High Commissioner for Human Rights. Retrieved from: http://www2.ohchr.org/english/issues/women/docs/Paper_Prosecution_of_Sexual_Violence.pdf [accessed 30/90/20]

14 Charlesworth, H. (1999). Feminist Methods in International Law. American Journal of International Law, 93(2), 387

15 Grewal, K. (2010). Rape in Conflict, Rape in Peace: Questioning the Revolutionary Potential of International Criminal Justice for Women’s Human Rights’. Australian Feminist Law Journal, 33(1), 75

16 Shackel, 187

17 Shackel, 190

18 Prosecutor v. Lubanga, ICC-01/04-01/06, (Apr. 4, 2014)

19 Prosecutor v. Uhuru Muigai Kenyatta, ICC-01/09-02/11 (March 13, 2015)

20 Prosecutor v. Simone Gbagbo, ICC-02/11-01/12 (Dec. 11, 2014)

21 United Nations Secretary-General (2019)

22 Green, 531

23 United Nations Secretary-General. (2014). Reparations for Conflict-Related Sexual Violence. Retrieved from: https://www.unwomen.org/-/media/headquarters/attachments/sections/docs/2014/unsg-guidance-note-reparations-for-conflictrelated-sexual-violence-2014-en.pdf?la=en&vs=1356

24 United Nations Secretary-General (2019)

25 Grey, 188