Tuesday, March 8, 2011

International Gender Justice: Progress in International War Crimes Tribunals and the UN Security Council

On International Women’s Day, it is appropriate to recognize the remarkable progress that women and girls have secured for gender related crimes in contemporary international war crimes tribunals. The International Criminal Tribunal for the former Yugoslavia (ICTY) was established in 1993 and its sister tribunal, the International Criminal Tribunal for Rwanda (ICTR), was set up the following year. These two tribunals, set up by the UN Security Council, have together successfully prosecuted rape as a war crime, a crime against humanity, and an instrument of genocide (the groundbreaking cases which established the leading precedent are ICTR: Akayesu, Muhimana; ICTY: Celebici, Furundzija, Kunarac); they’ve recognized rape and enslavement as a form of sexual slavery (ICTY: Kunarac); they’ve recognized rape as forms and means of torture (ICTR: Akayesu; ICTY: Celebici, Furundzija, Kunarac), as well as forms and means of persecution (ICTY: Krstic, Kvocka), that gender crimes may form part of a joint criminal enterprise (JCE) and both perpetrators and others participating in the JCE may be held responsible for intended or foreseeable crimes committed in furtherance of the JCE (ICTY: Krstic, Kvocka), and that men and boys are subjected to sexual violence (ICTY: Tadic, Celebici). They have also noted that other gender-related crimes, such as forced marriage, forced nudity, forced pregnancy and forced abortion, may constitute an international crime (ICTY: Kvocka).

In 1998, the Rome Statute of the permanent International Criminal Court (ICC) formally listed rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and “other forms of sexual violence of comparable gravity,” as war crimes and crimes against humanity (arts. 7 and 8) and also emphasized that gender based persecution as well as trafficking in women and children may be prosecuted (art. 7). While no judgment has yet been rendered in the ICC, the court has accused individuals of rape or sexual slavery as war crimes and crimes against humanity committed in Uganda (Kony et. al), the Democratic Republic of Congo (Katanga & Ngudjolo; Mbarushimana), the Central African Republic (Bemba), and the Darfur region of Sudan (Harun & Ali Kushayb; Bashir). There will likely be sex crimes included in the situations in Kenya and Libya once charges are formalized and arrest warrants sought for these situation.
(See here for more on the gender report card at the ICC).

The Special Court for Sierra Leone (SCSL) has successfully prosecuted rape, sexual slavery, and inhumane acts of forced marriage (AFRC) and in 2009 the Extraordinary Chambers in the Courts of Cambodia convicted the head of a Khmer Rouge torture facility of a number of crimes, including rape (Duch). Mixed chambers in East Timor and Bosnia have also brought war crime and crime against humanity charges for rape crimes.

Unquestionably, in the last 18 years, unprecedented progress has been made on securing justice for gender related crimes in international/ized war crimes tribunals. Yet to be sure, the number of indictments charging individuals with gender crimes, particularly senior military and civilian leaders far from the battlefield, is grossly inadequate, and many sex crime charges that have been brought have been dropped or acquitted. Moreover it is past time for the tribunals to prosecute other recognized crimes, including forced pregnancy and enforced sterilization, which are committed far too commonly in this era when sexual violence is intentionally committed both with random abandon and with callous calculation – as powerful weapons of terror and destruction.

In part in recognition of the strategic use of sexual violence as powerful tools of warfare, as well as its common occurrence because the atmosphere of war and the long history of impunity for sex crimes exploits the opportunity, the UN Security Council has stepped up its efforts to ensure wartime sexual violence is redressed. Over the last decade the council has devoted no fewer than nine resolutions exclusively to ending and punishing war time sexual violence and enhancing the empowerment of women in peacemaking and peacekeeping: 1325 (2000), 1612 (2005), 1674 (2006), 1820 (2008), 1882 (2009), 1888 (2009), 1889 (2009), 1894 (2009), and 1960 (2010). (Prior posts). To reinforce these efforts, in 2010, the Secretary-General appointed a Special Representative on Sexual Violence in Conflict (Margot Wallstrom).

Clearly, enormous – albeit unsatisfactory – progress has been achieved on securing justice for survivors of gender related crimes. Much remains to be done, yet the situation is far from bleak. When leaders who order, ignore, or acquiesce to crimes committed by subordinates are tried, thousands in the victimized communities can have their crimes addressed by those most responsible – perhaps even more so than the physical perpetrators – for the crimes committed against them. As international and domestic courts increasingly go up the power chain to prosecute top leaders, wider justice will be provided. And great satisfaction can be gained in recognizing that over the last fifteen years, there is now worldwide recognition that sex crimes are among the most serious international crimes committable, and these crimes are regarded as those that threaten international peace and security and thus demand action to halt and punish such crimes. If as much progress is made on gender justice in the next fifteen years as the past fifteen, the world community will be well on its way to ending impunity for gender related sex crimes, and for reversing the shame and stigma wrongly attached to victims, instead of perpetrators, of sex crimes.
See our Women & ICL series for more.


Unknown said...

Would love to hear more about this subject but with an interdisciplinary perspective, reflecting how law integrates these different views into its jurisprudence on sexual crimes

Anonymous said...

Excellent article. Had not previously given it any thought that sex crimes can actually be part of a war time strategy, vs. a consequence of war. I was glad to read your positive comments at the end of the article, which certainly sound hopeful. Thanks for the post.