Women's Rights Activists at the Women’s Court

(Delighted to welcome back IntLawGrrls guests/alumnae Brigid Inder, Kate Orlovsky, and Katrina Anderson who contribute this guest post to IntLawGrrls' series on the ICC Kampala Conference)

KAMPALA, Uganda -- On Tuesday, June 1 the Women’s Initiatives for Gender Justice organized an all-day Women’s Court during the Review Conference of the Rome Statute (pictured at left and below right). The Women’s Court featured presentations from women's rights and peace activists from Uganda, Central African Republic, Democratic Republic of the Congo, and Sudan, who spoke about the impact of these conflicts on women, the targeting of women by armed forces and militia groups for crimes of sexual violence and their work for justice, accountability and peace. The Women’s Court held four sessions, each focusing on an ICC situation country, and was moderated by experts including Nobel Peace Laureate Wangari Maathai (pictured below right, at left), Silvana Arbia, Registrar of the International Criminal Court, Bukeni Waruzi, Lead Campaign for Gender-based violence at Witness, and Elisabeth Rehn, Chairperson for the Board of Directors for the ICC Trust Fund for Victims (whose session was discussed further in Valerie Oosterveld's post yesterday).
The Women’s Court followed in the footsteps of the 1993 Vienna Tribunal on Women’s Human Rights and the 2000 Tokyo Women’s Tribunal. These tribunals, with their compelling testimony by women victims/survivors of armed conflict, helped pave the way for international tribunals to prosecute gender-based crimes as international crimes. Like its predecessors, the aim of the Women's Court was to draw attention to the particularized harms that women and girls experience during armed conflict and the fact that crimes against women continue to be under-investigated and prosecuted. Rather than making a determination of guilt or delivering a formal ‘judgment’, the purpose of the Women’s Court was to ensure that the voices and experiences of victims — and especially women — assume an appropriately central role at the Review Conference.
Timed to precede the stocktaking process scheduled for the first week of the Review Conference, the Women’s Court provided a forum for victims/survivors and women’s rights advocates to express their views on the four stocktaking themes (the impact of the Rome Statute system on victims and affected communities, peace and justice, complementarity and cooperation). The presenters shared their views about the impact of armed conflict on women, their desire for accountability for perpetrators of gender-based crimes, their hope in the ICC to deliver on its promise of justice, and the specific challenges they face in their work for justice, peace, and reconciliation. And while affirming the importance of the ICC as a mechanism for accountability, they also expressed frustration over the delay in trials, failure of governments to execute arrests and cooperate in other ways with the Court, and lack of information about the Court’s role in bringing justice and peace.
Memorable quotes from presenters at the Women’s Court include:
On peace and justice: “Women want to be included in the formulation of any justice mechanisms and not to be treated as victims or survivors, which is the practice now.” - Rosalba Oywa, Uganda
“We would like the stocktaking process to look at those who accommodate war criminals and provide the guns.” - Joyce Lakot, Uganda
On the impact of the Rome Statute system on victims and affected communities:
“The ICC has not yet met its objective as people are not informed about the way it functions or even its existence. We think there is a lack of information towards the population in general and towards victims in particular.” - Francine Banja, Democratic Republic of the Congo
On complementarity: “It is imperative that Ugandan prosecutions of crimes committed should be conducted with the same standards as the Rome Statute, the highest standards of international law. The domestic process should include the Elements of Crimes and the Rules of Procedure and Evidence used at the ICC. There is urgency to create the special court to supplement the ICC within Uganda, but we expect the special court to be independent, impartial and effective.” - Akwero Jane Odong, Uganda (pictured above right, at right)
On cooperation: “We must fight cross-border impunity. We are not going to be scared by threats to human rights defenders by the Sudan government -- threats that have been happening for the past 20 years.” - Osman Hummaida, Sudan

IntLawGrrls at ICC Review Conference

(1st in a series of IntLawGrrls' Kampala Conference posts)

The Review Conference of the Rome Statute of the International Criminal Court will open in Kampala, Uganda, this Monday, May 31, and will run until June 11. This is the first Review Conference since the adoption of the Rome Statute in 1998.
As detailed in the provisional work programme, the Review Conference will begin with a plenary, with statements by the current UN Secretary-General, Ban Ki-moon, and the former UN Secretary-General, Kofi Annan. The President of Uganda will also make a statement, as will the President of the ICC’s Assembly of States Parties, the President of the ICC and the ICC’s Prosecutor. These statements will be followed by country statements, including statements by many of the 111 States Parties.
On the evening of June 1, discussions on the subject of IntLawGrrls' year long series, the crime of aggression, begin. So do discussions on the Belgian proposal to amend the war crimes provision to prohibit the use during non-international armed conflict of certain weapons (poison or poisoned weapons; asphyxiating, poisonous or other gases; and bullets which expand or flatten easily in the human body).
On June 2 and 3, there will be a series of stocktaking exercises, evaluating the ICC’s past, current and future impact on victims and affected communities, as well as peace and justice issues, and the application of the ICC’s complementarity and cooperation provisions.
The remainder of the Review Conference will be dedicated to discussions on the crime of aggression, the Belgian proposal, strengthening the enforcement of sentences, and the potential deletion of article 124 (a transitional provision permitting a State to make a declaration excluding the Court’s jurisdiction over war crimes for seven years).
In addition, civil society will hold a wide variety of side-events, taking place in the People’s Space. One that we are very excited about is the Women’s Court, to be held all day on June 1. It is being organized by the Hague-based nongovernmental organization Women’s Initiatives for Gender Justice. At this Court, women’s rights activists from Uganda, Democratic Republic of the Congo, Central African Republic and Sudan will speak. (image at right courtesy of the Women's Initiatives)
Approximately 2000 state representatives and representatives of nongovernmental and intergovernmental organizations will be in attendance at the Review Conference, including a number of our very own IntLawGrrls. Beth Van Schaack will serve as an academic advisor on the U.S. delegation (her series posts here, here, and here), and yours truly will serve as an academic advisor on the Canadian delegation. A new guest, Pam Spees, and I will contribute a joint post (here) in honor of our recently departed friend and mentor, Rhonda Copelon, now an IntLawGrrls foremother. In addition to this and to my solo posts (here, here, here, here, and here), IntLawGrrls planning to post from Kampala include Susana SáCouto (here) and Kelly Askin. Another new guest, our colleague Leila Nadya Sadat, will contribute posts from Kampala (here and here). IntLawGrrls guests/alumnae will also contribute: Margaret deGuzman will post about the stocktaking complementarity discussion (here; additional post here), and Brigid Inder, Kate Orlovsky and Katrina Anderson will blog (here) about the Women’s Court and other Women’s Initiatives events. From elsewhere in our world, IntLawGrrl Diane Marie Amann will write "Against aggression" (here; additional posts here, here, here, here, here, and here), IntLawGrrl Kathleen A. Doty will discuss the ICC and Darfur (here), and IntLawGrrl Naomi Roht-Arriaza will examine a "positive complementarity" analogue in Guatemala (here). Guests/alumnae Pamela Yates will tell us about the work Skylight Pictures is doing in Kampala (here), and Carmen Márquez-Carrasco will provide a post (here) about the European Union and the ICC.
More soon from (and about) Kampala ...

Guest Bloggers: Brigid Inder, Kate Orlovsky & Katrina Anderson

It's IntLawGrrls' great pleasure to welcome Brigid Inder (left), Kate Orlovsky (below right), and Katrina Anderson (below left) as today's guest bloggers.
All 3 work at Women’s Initiatives for Gender Justice, an international women’s human rights organization that advocates for gender justice through the International Criminal Court. Based in The Hague, Women Initiatives: conducts political and legal advocacy for the prosecution of gender-based crimes; advocates for victims’ participation before the ICC and reparations for women victims and survivors of armed conflicts; and engages in peace processes and negotiations. It also operatives extensive country-based capacity building programs and access-to-justice initiatives.
► Brigid is the Executive Director of Women’s Initiatives for Gender Justice. Before founding the organization, she was the Director of Community Legal Centres in New South Wales, Australia, and led HIV/AIDS health promotion, services, and anti-discrimination program at Australia's largest HIV/AIDS Council. Brigid has a background in international politics and advocacy for women’s rights at the United Nations and other global policy arenas, and is currently the President of AWID, the Association for Women’s Rights in Development.
► Kate has been a Legal Officer with the Women’s Initiatives for Gender Justice for a little over a year; before that, she consulted for a number of international organizations working on international justice, including the International Center for Transitional Justice, the Coalition for the International Criminal Court, and Human Rights Watch.
► Katrina joined the staff of the Women’s Initiatives for Gender Justice as a Legal Officer this past July. Her previous position was as a Human Rights Attorney at the Center for Reproductive Rights in New York. She has also worked with the War Crimes Research Office at American University’s Washington College of Law, of which IntLawGrrl Susana SáCouto is Director, and with the Documentation Center of Cambodia.
In their guest post below, the 3 set forth a critique of 2 recent rulings that limit the ability of the ICC prosecutor to press a complete set of allegations respecting sexual violence and gender-based crimes.
Heartfelt welcome!

In Prosecutor v. Bemba, disturbing ICC decisions on gender-based crime

(Our thanks to IntLawGrrls for the opportunity to contribute this guest post)

Rulings by Pre-Trial Chamber II of the International Criminal Court in the case of Jean-Pierre Bemba Gombo (left) present a worrying development in the prosecution of gender-based crimes.
Twice now that Pre-Trial Chamber has refused to allow the Prosecutor to bring multiple charges of sexual violence to address the full range of harms experienced by victims of rape. The first refusal occurred in its June 15 decision confirming the charges against Bemba (prior IntLawGrrls posts); its second, in its recent decision to deny the Prosecutor’s request for appeal.
At the heart of the Pre-Trial Chamber’s reasoning is the idea that two charges sought by the Prosecutor to address crimes of sexual violence — torture and outrages upon personal dignity — are “in essence” the same as the single charge of rape. Such reasoning fails to appreciate that the elements of torture and outrages were drafted to capture harm distinct from the penetrative act of rape and to address different policy goals. This reasoning:
► minimizes the harm, impact, and purpose of the rapes suffered by the victims of these particular crimes;
► contravene a decade of jurisprudence by the ad hoc tribunals; and
► ignores the various provisions in the Rome Statute of the ICC that allow for the prosecution of sexual violence; the statute thus recognizes that gender-based violence, like other crimes, can be charged cumulatively to address different harms arising from the same criminal acts.
In its June 15 ruling, the Pre-Trial Chamber had confirmed charges against Bemba, including charges of rape as a war crime and crime against humanity. (Bemba, alleged President and Commander in Chief of the Mouvement de libération du Congo, was originally charged with eight counts of war crimes and crimes against humanity that Mouvement members committed in the Central African Republic in 2002-2003; the attacks included rapes perpetrated on a mass scale which, the Prosecutor alleged, were committed with such extreme violence and cruelty so as to amount to torture.)
However, the Chamber declined to confirm three counts that were also based on acts of sexual violence: torture as a crime against humanity, torture as a war crime, and outrages upon personal dignity. These separate charges of torture and outrages address, respectively, the pain and suffering experienced by the rape victims and their family members, as well as the victims’ humiliating and degrading treatment from the public and intra-family nature of the rape acts.
In addition to finding the Prosecutor had not provided sufficient notice to the Defence of the material basis for the charges other than rape, the Chamber reasoned that the counts of torture and outrages were “fully subsumed by the counts of rape.” In the view of the Chamber, these charges could therefore not be confirmed because they lacked a distinct element to the charge of rape; to allow them to go forward would be “detrimental to the rights of the Defence” because the Defence would have to confront “all possible characterizations.” Noting that Regulation 55 of the Regulations of the Court allows the Trial Chamber to modify the legal characterization of the facts, the Pre-Trial Chamber stated that the issue could be rectified at a later stage.
The Prosecutor submitted a request for leave to appeal the Chamber’s dismissal of the torture and outrages charges. Soon after, our human rights organization, the Women’s Initiatives for Gender Justice, requested, and was granted, leave to file an amicus curiae brief with the Court on the issue of cumulative charging and the rights of the accused.
Just a few weeks ago, on September 18, the Chamber issued its most recent decision, in which it refused to grant the Prosecutor’s request for leave to appeal, and reiterated that the facts presented by the Prosecutor “were in essence constitutive elements of force or coercion in the crime of rape, characterizing this crime, in the first place, as an act of rape.”
Written by Patricia Viseur Sellers (left), former Legal Advisor for Gender Related Crimes at the ICTY, the Women’s Initiatives’ amicus curiae brief argued that the Chamber misapplied the cumulative charging test that the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia had developed in Prosecutor v. Delalic. The practice of cumulative charging, which can occur until the end of trial, must be distinguished from due process violations arising from cumulative convictions, which may be pronounced by the judge upon a finding of guilt. Cumulative charges, as long as they are supported by sufficient evidence, are not inimical to the rights of accused because these rights are safeguarded throughout the trial. The Chamber’s approach also both appears to ignore the distinct crimes, articulated in the Rome Statute, under which an accused can be charged for sexual violence, and contradicts the Elements of Crimes, an instrument that states, in its general introduction, “a particular conduct may constitute one or more crimes.”
In this particular case, the Chamber’s narrow construction of the cumulative charging test resulted in the exclusion of certain sexual violence evidence with respect to certain categories of witnesses. For example, it is now unclear whether the Chamber will allow testimony from family members who were forced to watch their relatives being raped, even though the harm these individuals suffered is surely distinct from the harm of penetration as an element of rape. In the amicus filing by the Women’s Initiatives, Viseur Sellers compared the Chamber’s approach to the very different result reached by the ICTY Trial Chamber’s judgment in Prosecutor v. Furundžija (1998). There a witness who had been forced to watch the repeated rapes of another was held to have been the victim of torture.
On the issue of rape as torture, the International Women’s Human Rights Law Clinic at CUNY School of Law had proposed a separate amicus in Bemba, but the ICC's Pre-Trial Chamber II denied that request.
Taken together the two Pre-Trial Chamber decisions, while not binding on other pre-trial chambers, raise critical issues, all of these issues were discussed in the Women’s Initiatives’ amicus brief, for those concerned about gender justice at the ICC to monitor:
► As mentioned, the Pre-Trial Chamber's referred to the Trial Chamber's power to revise the legal characterization of facts under Regulation 55. As IntLawGrrl Susana SáCouto posted on Thursday, this issue has also surfaced in the Lubanga trial: there the Trial Chamber gave notice to the parties, after the prosecution had presented its case, that the Trial Chamber may recharacterize the facts to include charges of sexual slavery and cruel and/or inhuman treatment.
► There are concerns about the sufficiency of evidence the Prosecutor is required to put forward at the pre-confirmation stage with respect to sexual violence charges.
► Similarly, there are concerns about the Chamber’s duty under Article 21(3) of the Rome Statute to apply the provisions of the Rome Statute in a non-discriminatory manner.