Gender and the International Criminal Court (ICC)

On July 17, 1998, 120 countries provided for the world's first permanent International Criminal Court (ICC) by voting in favour of the Rome Statute.

The Rome Statute represents important advances in the prosecution of gender-based and sexually violent crimes that take place during armed conflict.

Historically, gender-based crimes have received little attention from investigators and prosecutors. The ICC strives to change that by including gender-based crimes in the Rome Statute and by making gender issues a central concern for the Court.

Background

Early in the process of negotiating the Rome Statute, participating States and nongovernmental organizations (NGOs) realized that they needed to create a gender-sensitive court. Accordingly, they pressed to incorporate provisions in the Rome Statute that address the full range of gender-based crimes against humanity and war crimes.

Delegates also made provisions to ensure that victims and witnesses, including victims and witnesses of gender-based crimes, could participate in the ICC process without revisiting traumatic experiences. To that end, negotiators guaranteed that ICC judges and staff would include individuals with expertise on gender-based crimes and the needs of the victims and witnesses of those crimes.

Genocide, Crimes Against Humanity and War Crimes

The central pillar of the Rome Statute is the definition of crimes. Both the definitions of crimes against humanity and war crimes specifically include “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence.” This list is significant because it represents a nuanced understanding of sexual violence within the context of international and internal armed conflicts. This understanding was first adopted by the International Criminal Tribunals for the Former Yugoslavia and Rwanda.

The definition of crimes against humanity also includes:

  • persecution of any identifiable group or collectivity on various grounds, including gender; and
  • enslavement, which includes trafficking in women.

Witnesses and Victims

Apart from the obvious recognition of gender-based offences in the Rome Statute's definitions of crimes, it includes a number of articles that will directly affect how women experience the ICC.

It is very difficult to prosecute crimes of sexual violence unless victims and witnesses can provide evidence for investigators and the Court. In order to minimize this difficulty, many governments and NGOs worked hard during ICC negotiations to define proper, gender-sensitive treatment of victims and witnesses.

The Rome Statute allows victims to participate at key intervals in the investigation and trial process. For example, victims can make representations to the Pre-Trial Chamber as part of the Prosecutor's request to authorize an investigation:

Article 15(3)
Prosecutor

If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected. Victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence.

In order to protect the safety and well-being of victims, special measures may be taken when a victim appears before the Court, such as allowing the person to give testimony in a courtroom closed to the public:

Article 68(2)
Protection of the victims and witnesses and their participation in the proceedings

As an exception to the principle of public hearings provided for in article 67, the Chambers of the Court may, to protect victims and witnesses or an accused, conduct any part of the proceedings in camera or allow the presentation of evidence by electronic or other special means. In particular, such measures shall be implemented in the case of a victim of sexual violence or a child who is a victim or a witness, unless otherwise ordered by the Court, having regard to all the circumstances, particularly the views of the victim or witness.

The Rome Statute also provides for reparations to victims, which may include restitution, compensation and rehabilitation:

Article 75
Reparations to victims

  1. The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting.
  2. The Court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. Where appropriate, the Court may order that the award for reparations be made through the Trust Fund provided for in article 79.
  3. Before making an order under this article, the Court may invite and shall take account of representations from or on behalf of the convicted person, victims, other interested persons or interested States.
  4. In exercising its power under this article, the Court may, after a person is convicted of a crime within the jurisdiction of the Court, determine whether, in order to give effect to an order which it may make under this article, it is necessary to seek measures under article 93, paragraph 1.
  5. A State Party shall give effect to a decision under this article as if the provisions of article 109 were applicable to this article.
  6. Nothing in this article shall be interpreted as prejudicing the rights of victims under national or international law.

The ICC has a Victims and Witnesses Unit located within the Registry. This Unit is responsible for protecting and counseling victims and witnesses. The Victims and Witnesses Unit is staffed by individuals with extensive experience dealing with trauma related to crimes of sexual violence:

Article 43(6)
The Registry

The Registrar shall set up a Victims and Witnesses Unit within the Registry. This Unit shall provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counseling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses. The Unit shall include staff with expertise in trauma, including trauma related to crimes of sexual violence.

Staffing of the Court and Choice of Judges

All of the articles on crimes, victim participation and victim protection included in the Rome Statute would be virtually useless if the Court were not staffed by people who are aware of and sensitive to gender issues. Therefore, the Rome Statute specifically requires the Prosecutor and the Registrar to strive for fair representation of women and men on their staff, and to provide for staff with legal expertise on issues such as violence against women:

  • Article 42 states that “the Prosecutor shall appoint advisers with legal expertise on specific issues, including, but not limited to, sexual and gender violence and violence against children.”
  • Article 43(6) states that the Victims and Witnesses Unit “shall include staff with expertise in trauma, including trauma related to crimes of sexual violence.”
  • Article 36(8) specifies that when countries are choosing judges, they must take into account the need for a fair representation of female and male judges, as well as the need to include judges with legal expertise on violence against women.

Conclusion

The Rome Statute reflects the full range of gender issues relevant to the Court. Among the provisions that ensure that the rights of individuals are protected regardless of gender, the Rome Statute:

  • adds gender-based crimes and crimes of sexual violence to the list of crimes under ICC jurisdiction;
  • codifies the rights of victims during international criminal proceedings;
  • ensures that the ICC has gender-sensitive judges and staff; and
  • ensures that the ICC has a fair representation of female and male judges.

These provisions represent a truly great accomplishment and a significant step forward for international justice.