En-gendering Justice: the Statute of the International Crimiual Court iu a Gender Perspective

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En-gendering Justice: the Statute of the International Crimiual Court iu a Gender Perspective

in Human Rights in Development Online

References

1 See Human Rights Watch, Shattered Lives: Sexual Violence during the Rwandan Genocide and its Aftermath (September 1996) [hereinafter "Shattered Lives"]; Catharine A. MacKinnon, "Rape, Genocide, and Women's Human Rights", Harvard Women's Law Journal, vol. 17, 1994, pp. 6-8. 2 Tadeusz Mazowiecki, "Report on the situation of human rights in the territory of the former Yugoslavia", Annex, UN Doc. A/48/92-S/25341 (1993), para. 20, cited in Theodor Meron, "Rape as a Crime Under International Humanitarian Law" American Journal of International Law, vol. 87, 1993, p. 425. 3 Susan Brownmiller, Against our Will: Men, Women and Rape, Simon & Schuster, 1975. 4 For example, the rape and enslavement of Korean "comfort women" by the Japanese army, although one of the most brutal crimes committed during the Second World War, was not the subject of any of the prosecutions by the Tokyo Tribunal.

5 Attorney-General of the Government of Israel v. Eichmann, International Law Reports, vol. 36, 1961, pp. 299-302. 6 "Rome Statute for the International Criminal Court", UN Doc. A/CONF.183/9 (July 17, 1998) [hereinafter "Rome Statute"], art. 17. 7 Rome Statute, ibid., arts. 6, 7, and 8. 8 Rome Statute, op.cit., art. 7.

9 Rome Statute, op cit., art. 8. 10 Rome Statute, op.cit., art. 13. " Rome Statute, op.cit., art. 15. 12 Rome Statute, op.cit., art. 12. " Rome Statute, op.cit., art. 13. " Rome Statute, op.cit., art. 87. 15 Rome Statute, op.cit., art. 16.

Rome Statute, op.cit., art. 16. Rome Statute, op.cit., art. 27. Rome Statute, op.cit., art. 28.

'° Rome Statute, op.cit., art. 8(2)(b)(xxii) for international armed conflict, which uses the term "grave breach" and art. 8(2)(c)(vi) for non-international armed conflict, which uses the term "serious violation" 20 Rome Statute, op.cit., art. 7(1)(g). 21 Rome Statute, op.cit., art. 7( I )(h). 22 Rome Statute, op.cit., art. 7(2)(c).

23 Rome Statute, op.cit., arts. 54(1)(b), 57(3)(c), 64(2) and 68. z4 Rome Statute, op.cit., art. 43(6) and 68(4) 25 Rome Statute, op.cit., art. 75. 26 Rome Statute, op.cit., art. 36(8)(a)(iii). 27 Rome Statute, op.cit., art. 36(8)(b). 28 Rome Statute, op.cit., art. 44(2). z� Rome Statute, op.cit., art. 42(9). '° Rome Statute, op.cit., art. 7(3).

31 "Implementation of the Outcome of the Fourth World Conference on Women, Report of the Secretary-General", UN Doc. A/51/322, (Sept. 3, 1996) [hereinafter "Beijing Report"]. Paragraph 9 states: "As a starting point, in United Nations usage, gender refers to the socially constructed roles played by women and men that are ascribed to them on the basis of their sex. Gender analysis is done in order to examine similarities and differences in roles and responsibilities between women and men without direct reference to biology, but rather to the behaviour patterns expected from women and men and their cultural reinforcement. These roles are usually specific to a given area and time, that is, since gender roles are contingent on the social and economic context, they can vary according to the specific context and can change over time. In terms of the use of language, the word 'sex' is used to refer to physical and biological characteristics of women and men, while gender is used to refer to the explanations for observed differences between women and men based on socially assigned roles. 'z Beijing Report, ibid., "Annex IV: Statement by the President of the Conference on the Commonly Understood Meaning of the Term 'Gender"'. Paragraphs 2 and 3 state: "Having considered the issue thoroughly, the contact group noted that: ( 1 ) the word 'gender' had been commonly used and understood in its ordinary, generally accepted usage in numerous other United Nations forums and conferences; (2) there was no indication that any new meaning or connotation of the term, different from accepted prior usage, was intended in the Platform for Action. Accordingly, the contact group reaffirmed that the word 'gender' as used in the Platform for Action was intended to be interpreted and understood as it was in ordinary, generally accepted usage."

33 See arts. 20(C)(2)(j) and 20(D)(g) in "Report of the Preparatory Committee on the Establishment of an International Criminal Court", GAOR, Fifty-first Session, Supplement No. 10, UN Doc. A/51/10, Vol. I, p. 392, para. 98, and Vol. II, pp. 491-2 [hereinafter "ILC draft"]. " "Convention Respecting the Laws and Customs of War on Land, with annexed Regulations", (Oct. 18, 1907), Treaties and Other International Agreements of the United States ofAmerica, 1776-1949, C. F. Bevans, (ed.), vol. 1, 1970, p. 631, art. 46 [hereinafter "Fourth Hague Convention"]. The Fourth Hague Convention does provide, in article 46, that "family honour and rights, individual lives and private property, as well as religious convictions and liberty, must be respected"; "Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (I.M.T.)", Annex, United Nations Treaty Series, vol. 82, 195 I, p. 279 [hereinafter "Nuremberg Charter"]. 'S "Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity", (December 20, 1945), Official Gazette of the Control Council for Germany, no. 3, Jan. 31, 1946, pp. 50-55.

36 "Conventions Relative to the Protection of Civilian Persons in Time of War", United Nations Treaty Series, vol. 75, 1950, p. 135 [hereinafter "Fourth Geneva Convention"]. " Theodor Meron, op.cit., p. 425. '8 The Fourth Geneva Convention and "Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts", United Nalions Treaty Series, vol. 1 125, 1978, p. 3 [hereinafter "Protocol I"] refer to sexual violence crimes in articles dealing with the "Protection of Women". Since both men and women may be victims of sexual violence crimes, this characterization is also inaccurate. Rhonda Copelon, "Surfacing Gender: Re-Engraving Crimes Against Women in Humanitarian Law", Hastings Women's LawJournal, vol. 5, 1994, p. 249. '° "Convention on the Elimination of All Forms of Discrimination Against Women", United Nalions Treaty Series, Vol. 1249, 1981, p. 13; "International Covenant on Civil and Political Rights", Uniled Nations Treaty Series, vol. 999, 1976, p. 171; 'Universal Declaration of Human Rights", UNGA Res. 217 A (III), UN Doc. A/810. " Rhonda Copelon, op.cit., p. 250.

42 Protocol I, art. 76, and "Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts", Uniled Nalions Treaty Series, Vol. 1 125, 1978, p. 609 [hereinafter "Protocol II"], art. 4(2). Article 75(2)(b) of Protocol I and Article 4(2)(e) of Protocol II, which lay out the fundamental guarantees contained in the Protocols, prohibit "outrages upon person dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault". Similarly, Article 76 of Protocol I states that "[w]omen shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any other form of indecent assault". " Rape is included in article 5 on crimes against humanity, but is not included in article 2 on grave breaches of the Geneva Conventions or article 3 on war crimes. See the "Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991" (1993), UN Doc. S/25704, [hereinafter "ICTY Statute"]; "Statute of the International Criminal Tribunal for Rwanda" (1994), UNSC Res. 955, [hereinafter "ICTR Statute"]. 44 See Theodor Meron, op.cil.; Jennifer Green, Rhonda Copelon, Patrick Cotter and Beth Stephens, "Affecting the Rules for the Prosecution of Rape and Other Gender-Based Violence Before the International Criminal Tribunal for the Former Yugoslavia: A Feminist Proposal and Critique", Hastings Women's LawJournal, Vol. 5, 1994, pp. 186- 7 ; Anne Tierney Goldstein, Recognizing Forced ImpreKnalion as a War Crime under International Law, Centre for Reproductive Law and Policy, 1993, p. 9; and Rhonda Copelon, op.cil.

45 "Final Report of the United Nations Commission of Experts established pursuant to Security Council Resolution 780", "Annex 11: Rape and Sexual Assault: A Legal Study", UN Doc. S/ 1994/674/Add.2 (Vol. I ), (Dec. 28, 1994) [hereinafter "Final Report on Rape and Sexual Assault"], para. 15; Anne Tierney Goldstein, op.cit., p. 6. °" In the case of Cyprus v. Turkey, European Human Rights Reports, vol. 4, 1976, p. 537, the European Commission on Human Rights found that rape constituted "inhuman treatment" under article 3 of the European Convention of Human Rights and held that Turkey was responsible for the mass rape of Cypriot women in 1974. 47 "Final Report on Rape and Sexual Assault", op.cit., para. 15; Women's Caucus for Gender Justice for an ICC, "Recommendations and Commentary for December 1997 PrepCom on the Establishment of an International Criminal Court", WC.5.6-14, [hereinafter "Women's Caucus paper"]. 48 For example, in the indictment for Dragoljub Kunarac, the facts alleged that women were held in military headquarters and forced to provide sexual services and domestic services. The indictment, which was upheld by the Court upon a defence motion, charged the defendant with the crime of enslavement for these acts. Prosecutor v. Dragoljub Kunarac, Gagovic and Others, (Case no. IT-96-23), Decision on Defence Preliminary Motion on the Form of the Amended Indictment, Oct. 21, 1998. 49 See: Women's Caucus paper, op.cit.; and Prosecutor v. Akayesu, (Case no. ICTR-96-4-T), Judgment, Sept. 2, 1998, para. 597; Prosecutor v. Delalic et al. (Case no. IT-96-21-T), Judgment, Nov. 16, 1998, paras. 480-96; Rhonda Copelon, op.cit., pp. 251-255. 50 Final Report on Rape and Sexual Assault, op.cit.; Theodor Meron, op.cit., p. 427. 51 Prosecutor v. Dragoljub Kunarac, op.cit.

52 see: Final Report on Rape and Sexual Assault, op.cit, para. 15; Rhonda Copelon, op.cit.; Theodor Meron, op.cit., p. 428; Christine Chinkin, "Rape and Sexual Abuse of Women in International Law", European Journal of International Law, vol. 5, 1994, p. 340. 53 At this point, it is worth mentioning that Article 10 of the Rome Statute, which states that Part I I shall not be interpreted as limiling or prejudicing existing or developing rules of international law, does not preclude this use of the Statute. Article 10 does not mean that provisions in the Rome Stame which go beyond the existing state of international law prior to the Statute cannot be a development of international law. Article 10 does not prohibit the use of Part II as advancing rules of international law. "Prejudice" signifies harm to one's rights. Therefore, if the Rome Statute contains provisions that are an expansion of rights, this may still be interpreted as expanding such rights under the rules of international law, as long as other rights do not conflict. For example, the Vatican argued that forced pregnancy should be excluded from the Rome Statute because it could be prosecuted as rape or imprisonment.

ss Women's Caucus paper, op.cit., WC.5.2. sb Anne Tierney Goldstein, op.cit., p. 27. 57 Rome Statute, op.cit., art. 7(2)(f). 58 "Vienna Declaration and Programme of Action", UN Doc. A/CONF.157/23 (July 12, 1993), paras. 18 and 38; "Beijing Declaration and Platform for Action", UN Doc. A/CONF.177/20, (Sept. 15, 1995) [hereinafter "Beijing Platform for Action"], paras. 114, 132, and 135; "The elimination of violence against women", UNCHR Res. 1998/52; "Rights of the child", UNCHR Res. 1998/76, para. 13(a); "The elimination of violence against women", UNCHR Res. 1997/44, para. 4; "Rights of the Child", UNCHR Res. 1997/78, para. 13(a); "The elimination of violence against women", UNCHR Res. 1996/49, para. 5; "The elimination of violence against women", Res. 1995/85, para. 5.

59 This argument is attributable to Professor Rhonda Copelon, International Women's Rights Clinic at the City University of New York.

60' "Slavery Convention (1926)", League of Nations Treaty Series, Vol. 60, 1926, p. 253, art. 1; "Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery", United Nations Treaty Series, Vol. 266, 1957, p. 3, arts. I and 6(2); "LL.O. Convention. (No. 105) concerning the Abolition of Forced Labour", United Nations Treaty Series, vol. 320, 1959, p. 291, arts. 2 and 25; "Universal Declaration of Human Rights", op.cit., art. 4. 61 "Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others", UNGA Res. 317, arts. 1 and 2; 'Convention For The Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights)", United Nations Treaty Series, Vol. 213, 1955, p. 221, art. 4; 'American Convention on Human Rights", United Nations Treaty Series, Vol. I 144, 1979, p. 123, art. 6; 'African Charter on Human and Peoples' Rights", OAU Doc. CAB/LEG/67/3 Rev. 5, art. 5; "Programme of Action of the International Conference on Population and Development", UN Doc. A/CONF.171/13, (18 October 1994), paras. 4.9 and 4.23 and Principle 11. bz The Beijing Platform for Action, op.cit., para. 131, called for the effective suppression of trafficking in women and girls for the sex trade. The Vienna Declaration, op.cit., para. 38, condemns all gender-based violence, including international trafficking and stresses the importance of eliminating trafficking in women. See also: "Preliminary Report of the Special Rapporteur on the situation of systematic rape, sexual slavery and slavery-like practices during periods of armed conflict", submitted by Ms. Linda Chavez, UN Doc. E/CN.4/Sub.2/1996/26 (July 16, 1996). 63 Women's Caucus paper, op.cit., paras. WC5.6.6-1 1. 64 "Report on the mission to the Democratic People's Republic of Korea, the Republic of Korea and Japan on the issue of military sexual slavery in wartime", submitted by the Special Rapporteur on Violence against Women, UN Doc. E/CN.4/l996/52/Add.l, (Jan. 4, 1996), paras. 8-10.

`s ICTY Statute, op.cit., art. 5; ICTR Statute, op.cit., art. 3; Control Council Law No. 10, op.cit.; Nuremberg Charter, op.cit. 66 Rhonda Copelon, op.cit., pp. 261-2. 6' Rome Statute, op.cit., arts. 7( 1 )(h) and 2(h). °e Rhonda Copelon, op.cit., pp.261-2; "Gender Justice and the ICC", Women's Caucus paper, op.cit., p.18.

Prosecutor v. Kupreskic el al, (Case No. IT-95-16), 14 January 2000, para. 615(e). '° US v. Ernst von Weizsacker (the Ministries Case), NMT, vol. XIV, p. 471, cited in Prosecutor v. Kupreskic et al, ibid, para. 599. 71 Ibid, para. 580. 'z Rome Statute, op.cit., arts. 7( 1 )(d), (e) and (k). " Rome Statute, op.cit., arts. 8(2)(a)(iv), (a)(vii), (b)(viii), and (b)(xxi).

" See Rule 96 of the "Rules of Procedure and Evidence of the ICTY", IT-32, (14 March 1994) as amended [hereinafter "ICTY Rules"]; and "Rules of Procedure and Evidence of the ICTR", (5 July 1995), as amended [hereinafter "ICTR Rules"]. 75 prosecutor v. Dusko Tadic (Case no. IT-94-I-T), Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses, Aug. 10, 1995; Prosecutor v. Dragoljub Kunarac, op.cit. '6 Shattered Lives, op.cit. 77 it should be noted that the article was intended to apply exclusively to victims and witnesses. A proposal to include protective measures for the accused under this article had been rejected by the delegates. Unfortunately, at the last working group dealing with this article, a last-minute deal resulted in the addition of the word "accused" to subparagraph 2. Syria proposed that closed hearings be mandatory in cases of sexual violence because of its belief that these cases would corrupt social morals if they were accessible to the public. Other countries were opposed to this proposal. Canada made several suggestions for compromise language which were resisted by the Syrian delegate. Canada proposed adding "the accused" to subparagraph 2. While this proposal does not address Syria's concern, it was accepted nonetheless, eroding the logical cohesion of the Statute. '$ Rome Statute, op.cit., art. 34.

" "Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power", LJN G.A. Res. 40/34, (29 November 1985). $° The language of article 75(3) is confusing in stating that the Court may invite representations by victims, but that it shall take into considerations these representations. One possible interpretation is that the Court must take into consideration any representations that are submitted, and if none are submitted, has the option to invite such representations. 81 Rome Statute, op.cit., art. 43(6).

82 Prosecufor v. Dusko Tadic, op.cit., para 55.

83 Rome Statute, op.cit., art. 69(4). 84 Rule 89(d) of ICTY Rules and ICTR Rules, op.cit.

85 Beijing Platform for Action, op.cit. 86 ILC draft, op.cit. 87 Rome Statute, op.cit., art. 37(3)(a).

88 "Convention on the Elimination of All Forms of Discrimination Against Women"�p.et7.; "Universal Declaration of Human Rights", op.cit. 89 Rome Statute, op.cit., art. 21. 1.

9o Proposal submitted by Bahrain, Iraq, Kuwait, Lebanon, the Libyan Arab Jamahiriya, Oman, Qatar, Saudi Arabia, the Sudan, the Syrian Arab Republic and United Arab Emirates concerning the elements of crimes against humanity, UN Doc. PCNICC/ 1999/WGEC/DP.39, (3 December 1999).

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