International Gender Justice Dialogue

From 20-21 April, the Women's Initiatives for Gender Justice in collaboration with the Nobel Women's Initiative hosted the International Gender Justice Dialogue, in Puerto Vallarta, Mexico.

The goal was to bring together gender experts, feminist legal theorists, peace mediators, legal practitioners, jurists, women’s rights advocates, policy makers, members of the media, and activists to identify and develop a strategic, shared agenda for advancing gender justice around the globe.

Although most participants from Europe and Africa were unable to attend because of the volcanic eruption in Iceland (which grounded flights throughout Europe), participants from other regions gathered for a day of panels and a second day of working group discussions. Among the highlights was Women's Initiatives Executive Director and IntlawGrrl guest/alumna Brigid Inder's (pictured right) opening speech, which you can read here.
As Professor Tina Dolgopol (pictured left left), of Flinder Law School in Adelaide, South Australia, noted in her observations about the first day,

A recurrent theme is the necessity of building networks, ensuring that your work
is based on an agreed and transparent set of principles and that you communicate often with your supporters. We hear these ideas from those involved in peace processes, justice networks and from the promotion of women’s rights generally.

IntLawGrrls Kelly Askin and I spoke on a panel entitled "Prosecutions and Jurisprudence - What have we achieved and what remains to be done," along with Professor Catharine A. MacKinnon, who sent in her comments via video. The session was moderated by IntLawGrrl guest/alumna Valerie Oosterveld.

One of the areas I touched on was a project we are undertaking that will hopefully contribute to the process of how we better assess the jurisprudence coming out of the international criminal tribunals, and therefore, the impact these tribunals are having on gender justice.
In October 2008, my office (the War Crimes Research Office at American University's Washington College of Law) organized, in collaboration with the WCL's Women's International Law Program, a two-day conference on “Prosecuting Sexual and Gender-Based Crimes Before International/ized Criminal Courts.” Participants brainstormed about potential strategies and what was needed to improve the prosecution of sexual- and gender-based crimes before these tribunals. High on the list was the need for a modern, searchable, online database of cases (and related documents) coming out of these tribunals, focused on sexual- and gender-based crimes. In response to this need, last year we launched the Gender and ICL Jurisprudence Collections Project. The project has four phases:

1) collection of key decisions, orders and judgments relating to sexual and gender-based violence and making them available online so that you will be able to search them within and across courts;
2) key-wording those cases to facilitate searches relating to how these tribunals have handled cases involving sexual and gender-based violence;
3) digesting those cases with a view to highlighting the facts, allegations or factors affecting the prosecution of such crimes; and
4) providing commentaries on a select number of cases we identify as critical to understanding the development of the law in this area.

The basic aim of the project is to facilitate research in this area by practitioners, advocates and academics, but more importantly to “surface” the decisions that may go unnoticed between indictment and judgment, but which have important consequences for how sexual and gender-based violence is treated by these tribunals.
Follow outcomes from the Gender Justice Dialogue working groups here.

On the Job! Jurisprudence Collections Coordinator

(On the Job! pays occasional notice to interesting intlaw job notices) The War Crimes Research Office (WCRO) at American University Washington College of Law is seeking a qualified and highly motivated candidate for the position of Jurisprudence Collections Coordinator. This individual will be responsible for implementing and supervising the collection, organization, and indexing and digesting jurisprudence from international/ized courts and tribunals. The goal is to create and maintain a highly flexible legal research tool for practitioners worldwide.
After completion of the initial indexing project, the Coordinator will be expected to maintain and improve the Collection, work with the WCRO Director to explore opportunities for expansion, and help to maximize use of the resource among international/ized criminal courts, NGOs working in the field, academic institutions, and other relevant constituencies. The Coordinator may also be called upon to take on discrete research projects, depending on WCRO needs and the Coordinator's abilities.
Position Requirements:
► A high level of proficiency with Internet-based research, Microsoft Office, and Adobe Acrobat essential
► Familiarity with document management software or digital asset management required; familiarity with Extensis preferred
► Familiarity with web content development and content management systems preferred
► Knowledge of international/ized criminal tribunals, international humanitarian law and/or international criminal law
► Excellent oral and written English skills required
► Excellent organizational skills and attention to detail essential
This is a part-time 27 hour/week position at $20/hour with the potential to become full-time.
To Apply: Applicants should send a detailed resume, cover letter, writing sample, and the names and contact information for three references to WCRO Director Susana SáCouto by email at warcrimes@wcl.american.edu.

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.

Update in the Lubanga Case

As has been blogged about here , Thomas Lubanga Dyilo was charged by the International Criminal Court with the offense set forth in Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Rome Statute, namely “conscripting or enlisting children under the age of fifteen years” or “using them to participate actively in hostilities.”

On 22 May 2009, over three years after Lubanga was first taken into custody by the ICC and over two years after the Pre-Trial issued its decision confirming the charges against him, the Legal Representatives of the Victims in Prosecutor v. Thomas Lubanga Dyilo filed a joint application with the Trial Chamber requesting that the Chamber use its authority under Regulation 55 of the Regulations of the Court to apply “an additional legal characterization” to the facts and circumstances described in the charging document, namely by adding the crime against humanity of sexual slavery and the war crimes of sexual slavery and cruel and/or inhuman treatment to the charges.

Regulation 55, which is entitled “Authority of the Chamber to modify the legal characterization of the facts,” states that:

1. In its decision under article 74 [referring to the final judgment of the Trial Chamber], the Chamber may change the legal characterisation of acts to accord with the crimes under articles 6, 7 or 8, or to accord with the form of participation of the accused under articles 25 and 28, without exceeding the facts and circumstances described in the charges and any amendments to the charges.
2. If, at any time during the trial, it appears to the Chamber that the legal characterisation of facts may be subject to change, the Chamber shall give notice to the participants of such a possibility and having heard the evidence, shall, at an appropriate stage of the proceedings, give the participants the opportunity to make oral or written submissions. The Chamber may suspend the hearing to ensure that the participants have adequate time and facilities for effective participation of, if necessary, it may order a hearing to consider all matters relevant to the proposed change.
3. For the purposes of sub-regulation 2, the Chamber shall, in particular, ensure that the accused shall: (a) Have adequate time and facilities for the effective preparation of his or her defence in accordance with article 67, paragraph 1(b); and (b) If necessary, be given the opportunity to examine again, or have examined again, a previous witness, to call a new witness or to present other evidence admissible under the Statute in accordance with article 67, paragraph 1(e).

In their filing, the Legal Representatives argued that the crime against humanity of sexual slavery and the war crimes of sexual slavery and cruel and/or inhuman treatment were supported by the facts and circumstances found in the Amended Document Containing the Charges, which reflects the charges confirmed by Pre-Trial I in its Decision on the Confirmation of Charges (“Confirmation Decision”). In other words, they argued that the facts alleged in the charging document could constitute the new crimes proposed.

In response, the Defense argued, inter alia, that the facts relied on by the Legal Representatives in support of their request exceeded the facts and circumstances described in the charges. For instance, the Defense pointed out that the Confirmation Decision made no mention of “facts and circumstances” supporting a widespread or systematic attack against a civilian population, which would be necessary to substantiate a crime against humanity charge. Therefore, the facts and circumstances could not be qualified as crimes against humanity. In addition, the Defense submitted that recharacterizing the charges in the manner requested by the Legal Representatives at this point in the proceedings would seriously affect the right of the accused to be tried without undue delay.

In a decision issued 14 July 2009, the same day that the Prosecution finished presenting its evidence in the case against Lubanga, the majority of Trial Chamber I held that it would consider adding the Legal Representatives’ proposed charges. Rather than assessing whether the facts relied on by the Legal Representatives in support of their request exceeded the facts and circumstances described in the charging document, the Trial Chamber concluded that this limitation was inapplicable to the “present procedural situation.” In reaching this conclusion, the Trial Chamber explained that Regulation 55 created “two distinct stages” during which the Trial Chamber could change the legal characterization of the facts. In its view, the first stage, defined in Regulation 55(1), allows the Trial Chamber to change the legal characterization of the facts “in its decision under article 74 [of the Rome Statute].” At that stage, the Trial Chamber is limited to recharacterizing the charges “without exceeding the facts and circumstances described in the charges. . . ” In the second stage, described in Regulations 55(2) and (3), the Trial Chamber can change the legal characterization “at any time during the trial.” According to the Chamber, modifications made at this stage need not be “done ‘without exceeding the facts and circumstances described in the charges . . .’”

Judge Fulford dissented from the majority opinion, arguing that Regulation 55 must be read as a singular or indivisible provision. Significantly, in his dissent, he references an earlier decision in which he and the two judges in the majority essentially endorsed this interpretation of Regulation 55. In that decision , the Trial Chamber explained that:

the terms of Regulation 55 do not involve any conflict with the main relevant provision, Article 74(2), because they allow for a modification of the legal characterisation of the facts rather than an alteration or amendment to the facts and circumstances described in the charges. Therefore, so long as the facts and the circumstances as described in the charges are not exceeded, pursuant to Regulation 55 it is possible to give those facts and circumstances a different legal characterisation, so long as no unfairness results.

Interestingly, in a subsequent clarification to the 14 July 2009 decision, the majority appeared to step back from its earlier position that modifications under Regulation 55(2) need not be limited to the facts and circumstances in the charging document, instead holding that any:

additional facts must . . . have come to light during the trial and build a unity, from the procedural point of view, with the course of events described in the charges.

While this seems to require some connection between the facts and circumstances in support of a request for recharacterization and those contained in the charging document, it is unclear what exactly would satisfy this standard.

Both the Prosecution and Defense sought leave to appeal the decision of the Trial Chamber. On September 3rd, the Trial Chamber granted leave to appeal, framing the first of two questions as follows:

Whether the Majority erred in their interpretation of Regulation 55, namely that it contains two distinct procedures for changing the legal characterisation of the facts, applicable at different stages of the trial (with each respectively subject to separate conditions), and whether under Regulation 55(2) and (3) a Trial Chamber may change the legal characterisation of the charges based on facts and circumstances that, although not contained in the charges and any amendments thereto, build a procedural unity with the latter and are established by the evidence at trial.

On October 2nd, the Trial Chamber issued a decision postponing the case, which was due to recommence on October 6th, until the Appeal Chamber issues a decision on the appeal. Stay tuned . . .

Welcoming IntLawChildren

Delighted to announce that Daniel Kelly SáCouto Turpen was born at 10:57 a.m. on Wednesday, May 6, 2009. His mom, IntLawGrrl Susana SáCouto, tells us that Daniel arrived as an 8-pound, 9-ounce, 20.5-inch, beautiful, barrel-chested boy.

He joins big sister Maia, with whom he's pictured above. Susana says that Maia 1st called him "brother-sister," her birth reference to the unknown entity to come. Then she called him "Lucas" for about the 1st week of his life, because she decided she liked that name better than "Daniel." But, at last, she seems to be adapting to his name!

"We're a bit wiped out and still adjusting to things," Susana writes, "but thoroughly enthralled by the newest addition to our family."

To this newest arrival to the ranks of IntLawChildren, our youngest supporters, a very

Heartfelt welcome!

ASIL congrats to IntLawGrrls et al.

Delighted to note that a number of IntLawGrrls have just assumed responsibilities within the American Society of International Law:
► IntLawGrrl Hari M. Osofsky is a Co-Chair of the ASIL Annual Meeting Program Committee, as announced in this call for papers post. Hari joins Russ LaMotte and Allen Weiner in that role.
► IntLawGrrls Rebecca Bratspies, Hope Lewis, and Beth Van Schaack, along with IntLawGrrl guest/alumna Chimène Keitner, have been appointed members of the Annual Meeting Program Committee. Joining them are Angela Banks, Curtis Bradley, William Burns, Charles Camp, Anupam Chander, James Gathii, Celia Goldman, Katherine Gorove, Avril Haines, Eckhard Hellbeck, David Kaye, Lillian Aponte Miranda, Steve Pomper, Catherine Powell, Vikram Raghavan, Leila Nadya Sadat, and Natalya Scimeca.
►IntLawGrrl Susana SáCouto is now a member of ASIL's Honors Committee, chaired by Lucinda Lowe. Other members are Doak Bishop, John Cerone, Susan Franck, and Vaughan Lowe.
► Chairing the Awards Committee will be Paul Stephan, aided by members Daphne Barak-Erez, Mark Drumbl, Chiara Giorgetti, and Rob Sloane.
► Nominating Committee Chair is José Alvarez; members are Pieter Bekker, Charles Hunnicutt, Jane Stromseth, Adrien Wing, and Edith Brown Weiss.
► David Kaye and Cymie Payne will join Amy Porges as editors of ASIL Insights, taking up the work of departing editors David Fidler and IntLawGrrls guest/alumna Peggy McGuinness, also an ASIL Executive Council member.
► The women mentioned in boldface above join President Lucy Reed, Vice President Diane Marie Amann, and Executive Council members Janie Chuang and Stephanie Farrior, and Andrea K. Bjorklund as IntLawGrrls in ASIL leadership.

Heartfelt congratulations!

(And a hearty hat tip to Emil Dixon, 3d-year student at the University of California, Davis, School of Law, for designing IntLawGrrls' logo!)

New Report on Victim Participation at the ICC

The War Crimes Research Office (WCRO) of American University Washington College of Law has recently issued a new report on Victim Participation at the Case Stage of Proceedings, examining the unique and innovative victim participation scheme of International Criminal Court.
This is the WCRO's second report on the subject of victim participation at the ICC. The first was primarily directed at the question of victim participation during the investigation stage of the Court’s proceedings. This report reviews the jurisprudence of the Court since the release of the first report over a year ago, with a particular emphasis on decisions pertaining to victim participation at the case stage.
Despite the wealth of expert analysis on the issue of victim participation -- both inside the Court and out -- there remains little clarity as to the purpose of the scheme or how it should operate. In part, the lack of clarity stems from the fact that Article 68(3) of the Rome Statute, which constitutes the foundational provision for victim participation before the Court, leaves a great deal of discretion to the Chambers to determine how and when victims will be permitted to exercise their right to present their views and concerns to the Court. Nevertheless, more than three years after Pre-Trial Chamber I’s first decision addressing the scope of victim participation, confusion remains as to the purpose of the scheme and how it should operate.
Only a fraction of the victims who have applied to participate in proceedings before the Court have received a response to their requests, and many of those who have had their applications evaluated have had to wait many months or years to learn whether their applications were denied or granted. At the same time, the participation rights granted to victims remain largely potential participation rights, as the Chambers have for the most part held that any victim wishing to exercise any form of participation must apply to the Chamber for permission and that such applications will be evaluated on a ‘case-by-case’ basis. Another issue addressed in the report is that the judges of the Court have adopted differing approaches toward the implementation of the scheme, resulting in victims in some cases having less extensive rights than victims in other cases.
The goal of the report is to contribute to the ongoing effort to render the victim participation scheme meaningful by identifying certain aspects of the scheme as implemented thus far that might benefit from review and offering recommendations consistent with the intent of the drafters that created the scheme.
The report is available here.

Go On! So Many Conferences ... So Little Time

(Go On! is an occasional item on symposia of interest) In addition to the ASIL annual meeting that Diane previews above, two noteworthy conferences, both set for Friday, April 3, 2009, are fast approaching:

Reproductive and Sexual Health and the African Women's Protocol

Washington and Lee University School of Law, Lexington, Virginia

Description:

The African Women's Protocol, adopted by the African Union in 2003 and in effect in 2005, is the first regional human rights instrument to focus comprehensively on women's rights. The symposium will serve as a discussion of the Protocol's utility at the intersection of reproductive/sexual health and women's rights, both quintessentially unmet needs of the African continent.
The HIV/AIDS pandemic, lack of access to contraception, harmful cultural practices, sexual violence and exploitation, deteriorating access to health services, and abortion will be among the topics of Symposium papers.
Washington and Lee's 2008-09 Scholar-in-Residence, Charles Ngwena, Professor of Health and Human Rights at the University of the Free State, South Africa, will chair the symposium, bringing together prominent scholars from Africa, Asia, Canada and the United States.

Speakers include IntLawGrrls' own Susana SáCouto.

CEDAW and Its Optional Protocol

New England Law School, Boston, Massachusetts

Description:

New England Law Boston will sponsor an international conference on April 3 entitled 'CEDAW and Its Optional Protocol.' Cosponsored by the American Society of International Law (ASIL), the conference will recognize the tenth anniversary of the adoption of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); examine work undertaken as a result, and discuss ways of increasing its effectiveness.
Members of the CEDAW Committee who will participate include Shanthi Dairiam, Pramila Patten, Cornelius Flinterman, and Silvia Pimentel. The United Nations High Commissioner for Human Rights will be represented by Jane Connors, director of the Human Rights Treaties Branch of the High Commissioner's Office. The conference will consist of several panels examining challenges to the effective implementation of the Convention, the issue of United States ratification, and the jurisprudence of the Committee, including comparative analyses of the work of other treaty-bodies and regional human rights institutions.

Alison Des Forges

The 1st genocide conviction after an international trial was issued by the International Criminal Tribunal for Rwanda on September 2, 1998, in the case of a Rwandan bourgmestre, Jean-Paul Akayesu. That milestone -- IntLawGrrl Susana SáCouto discussed the Akayesu judgment in a post just 2 days ago -- owed much to the work of Dr. Alison Des Forges (right).
Genocide charges turned on this question: Did the victims of the 1994 massacres in Rwanda -- mostly Tutsi -- belong to a protected "national, ethnical, racial or religious group" notwithstanding that they shared nationality, language, religion, culture, and customs with their Hutu killers? Essential to the ICTR's answer in the affirmative was the expert testimony of Des Forges, a historian who worked as a Senior Advisor for the Africa Division of Human Rights Watch. Among the judgment's many mentions of Des Forges occurs in para. 5.1, where she is quoted at length on the question:

'The primary criterion for [defining] an ethnic group is the sense of belonging to that ethnic group. It is a sense which can shift over time. In other words, the group, the definition of the group to which one feels allied may change over time. But, if you fix any given moment in time, and you say, how does this population divide itself, then you will see which ethnic groups are in existence in the minds of the participants at that time. The Rwandans currently, and for the last generation at least, have defined themselves in terms of these three ethnic groups. In addition reality is an interplay between the actual conditions and peoples' subjective perception of those conditions. In Rwanda, the reality was shaped by the colonial experience which imposed a categorisation which was probably more fixed, and not completely appropriate to the scene. But, the Belgians did impose this classification in the early 1930's when they required the population to be registered according to ethnic group. The categorisation imposed at that time is what people of the current generation have grown up with. They have always thought in terms of these categories, even if they did not, in their daily lives have to take cognizance of that. This practice was continued after independence by the First Republic and the Second Republic in Rwanda to such an extent that this division into three ethnic groups became an absolute reality'.

Des Forges also gave expert testimony in national courts, the United Nations, the Organization of African Unity, and the national legislatures of Belgium, France, and the United States. She published Leave None to Tell the Story: Genocide in Rwanda the year after the Akayesu judgment, and also won a MacArthur Foundation Fellowship for her work as, to use MacArthur words, a "Human Rights Leader."
Des Forges died Thursday in the plane crash near Buffalo. She was 66 years old.

ICC Prosecutor’s Application for Arrest Warrant for President al-Bashir of Sudan Highlights Rape and Sexual Violence as Evidence of Genocidal Intent

Yesterday, the New York Times reported that judges of the International Criminal Court had decided to issue a warrant of arrest for President Omar Hassan Ahmad al-Bashir (right) of Sudan. Today, the Court issued a statement indicating that "[n]o decision has yet been taken by the judges." Despite the confusion, it appears that the Court is likely to make a decision on the ICC Prosecutor’s application for the issuance of an arrest warrant some time this month. (Prior IntLawGrrls posts.)
The application made by Chief Prosecutor Luis Moreno-Ocampo (below left) contains 10 counts:
► 3 of genocide,
► 5 of crimes against humanity, and
► 2 of war crimes.
Even if the Court issues the arrest warrant, it is not clear whether the warrant will include all 10 counts. The counts of genocide, in particular, have been the subject of much debate. Indeed, several commentators have questioned whether the application presents sufficient evidence to support the legal characterization of the crimes committed in Darfur as genocide (see, for instance, the recent article by Alex de Waal).
Genocide is notoriously difficult to prove. Proving genocidal intent demands a showing that perpetrators not only targeted members of a protected group, but also that they did so specifically seeking to destroy the group, in whole or in part. It is generally not enough to show that an accused is aware that his acts will result in the destruction of the group; the accused must seek to achieve the destruction, in whole or in part, of the protected group. Recognizing the difficulty of proving genocidal intent, the ad hoc tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) have determined that, in the absence of a confession, genocidal intent can be inferred from other facts and circumstances, such as speeches or statements against the targeted group, acts of violence against cultural symbols associated with the group, other policies of discrimination against members of the group, and the brutality, scale and/or systematic nature of the atrocities against the particular group. Of course, when inferential evidence is relied upon to prove genocidal intent, the tribunals have cautioned that the

inference must be the only reasonable inference available on the evidence.

Although there may be disagreement as to what inferences can be drawn from the evidence presented by the Prosecutor in support of the arrest warrant application, one of the remarkable aspects about the application is that -- unlike the analysis of genocidal intent conducted in 2005 by the United Nations Commission of Inquiry (COI) tasked with investigating violations of international human rights and humanitarian law in Darfur -- it explicitly makes reference to pattern evidence of sexual violence as one of several factors that the Court should look to in assessing whether genocidal intent can be inferred. Indeed, in his submissions to the Court, the Prosecutor clearly stated that

the magnitude of the rapes and sexual assaults carried out by forces and agents under the control of Al-Bashir during attacks on villages and around IDP settlements and camps . . . indicates an intent to destroy the target group as such.

Although the COI had suggested an inference of genocidal intent was not warranted because, among other things, persons forcibly dislodged from their villages were not exterminated but rather "collected" in camps for internally displaced persons and allowed to receive humanitarian assistance, the Prosecutor has indicated that the attacks against the targeted group —particularly the widespread rapes — have continued in the camps, and that this suggests an intent not just to forcibly displace the targeted groups but, in fact, to destroy them. As he noted,

In view of the social stigma associated with rape and other forms of sexual violence among the [targeted groups], these acts [have] caused significant and irreversible harm, [not only] to individual women, [but] also to their communities.

Additionally, while the COI also supported its conclusion that genocidal intent was lacking by pointing to the fact that not everyone who was targeted was killed, the Prosecutor has argued —and the jurisprudence of the ICTY supports his position — that the failure to kill every member of the group does not necessarily negate other evidence of genocidal intent. To the contrary, the Prosecutor has argued, attacking the surviving members of the targeted group via, among other means, the infliction of sexual violence, is actually an efficient strategy to achieve the eventual destruction of the group, given that the "slow death" and disintegration of the group via these means has given rise to more muted international outrage than outright killings of members of the group might have engendered.
Although it is ultimately up to the Pre-Trial Chamber of the Court to determine whether the evidence is sufficient to support the issuance of an arrest warrant for genocide, the Prosecutor’s consideration of pattern evidence of sexual violence as potential evidence of intent should be commended. Indeed, although sexual violence has been recognized as a means by which to destroy a particular group (see landmark ICTR case of Prosecutor v. Akayesu), it has rarely been recognized as one of the factors that should be considered in assessing whether genocidal intent can be inferred. For instance, as alluded to above, despite finding that rapes had been used to terrorize, demoralize, and humiliate the targeted population in Darfur, the COI essentially ignored this evidence when making its assessment as to whether the facts supported an inference of genocidal intent. In light of how difficult genocidal intent is to prove, ignoring potentially valuable evidence of intent does a disservice to all who suffered under the perpetrators' genocidal scheme, including, of course, the victims of sexual violence themselves.

Women's International Law Interest Group

I want to join Diane and others in extending a very warm welcome to Lucy Reed, IntlawGrrls' newest member and 43rd President of the American Society for International Law (ASIL). As Co-Chair of ASIL's Women in International Law Interest Group (WILIG), I am very much looking forward to Lucy's tenure as President of ASIL, as she has been very clear from the start that one of her key initiatives as President will be to "mainstream" women's rights issues into ASIL's programs and pursue specific women's rights projects. On that note, I thought this would be a good opportunity to provide a brief overview of WILIG's recent and planned activities.
At ASIL's annual meeting held from April 9-12, 2008, in Washington, D.C., WILIG hosted its annual luncheon where we presented former Chief Justice Graciela Dixon (left) — the first woman of African descent to serve as Panama's chief justice and one of only a few women in the world serving in this position — with the Prominent Women in International Law award. Justice Dixon has been active in international legal organizations and international human rights, particularly in Central America, and served as President of both the International Association of Women Judges and the Latin America Federation of Magistrates (FLAM).
As mentioned in a prior post, this fall, WILIG will co-sponsor, with American University's War Crimes Research Office and Women’s International Law Program, a symposium on Gender and the ICC on October 14, 2008. Details and registration here.
The WILIG Steering Committee will also be meeting in September to discuss upcoming events and to begin discussions of who will receive the Prominent Women in International Law award at next year's lunch. We would appreciate any suggestions on either topic.
Finally, our deepest gratitude to Kit Bigelow for co-chairing the WILIG executive committee for the past 3 years. We so much appreciate all of Kit's work, and we look forward to her continuing involvement with the Executive Committeee.
Naomi R. Cahn (right), a law professor at George Washington University, has agreed to serve with me as a co-chair of WILIG. (I've been a co-chair for the past two years.) Naomi's first academic experiences with international women's rights occurred in 1992 and 1993, when she taught a course on the subject at Georgetown with Anne Tierney Goldstein and Susan Deller Ross. Naomi has written articles about gender and international law. She lived in Kinshasa, Democratic Republic of Congo, from 2002-2004, and she has served as a consultant on international women's rights issues.
We encourage members to post items of interest to other WILIG members by logging onto our forum here.

Go On! International Criminal Court prosecution of sexual & gender-based crimes

(Go On! is an occasional item on symposia of interest.) On July 1, 2002, the Rome Statute of the International Criminal Court entered into force, thus establishing the world’s first permanent court set up to try persons accused of the most serious crimes of international concern. With four investigations of situations ongoing and pre-trial proceedings underway in its first case (prior posts here), the Court is now grappling with how to implement many of the ground-breaking provisions advocates of international justice fought for in the negotiations leading up to Rome Statute, including those relating to sexual and gender-based crimes.
This issue will be addressed at an all-day conference entitled "Prosecuting Sexual and Gender- Based Crimes in the ICC: Translating Promises into Reality" on October 14, 2008, at Washington College of Law, American University, Washington, D.C. Save the date!
Leading experts in international criminal law and feminist jurisprudence will come together to take stock of whether and how the ICC (left) is living up to the promise of the Rome Statute to ensure accountability for sexual and gender-based crimes committed in times of conflict or in the context of genocide or crimes against humanity.
Patricia Viseur Sellers, the former Legal Advisor for Gender-Related Crimes at the Office of the Prosecutor for the International Criminal Tribunal for the former Yugoslavia, will deliver the keynote address. Panelists of practitioners, scholars, and advocates will address questions such as:
► As an institution, has the ICC staffed itself with the appropriate expertise on sexual and gender-based violence, as envisioned by the Rome Statute? If not, what consequences has this had for victims of sexual and gender-based violence?
► What standards is the Court using to determine which crimes are “grave” enough to investigate and prosecute, and do those standards take into account the possibility of gender bias?
► Do these standards allow for sexual and gender-based crimes to be charged and prosecuted with the same vigor as other crime?
► Are there lessons to be learned from the gender jurisprudence of the ad hoc and hybrid criminal tribunals?
This event is being sponsored by the War Crimes Research Office and the Women and International Law Program of Washington College of Law, American University, and by the Women in International Law Interest Group (WILIG) of the American Society of International Law. Details and registration here.

Welcome IntLawGrrl Susana SáCouto

Delighted to announce that Susana SáCouto has joined Rebecca Bratspies this week as IntLawGrrls' newest members.
Susana (left) is the Director of the War Crimes Research Office at the Washington College of Law (WCL), American University, Washington, D.C., which promotes the development and enforcement of international criminal and humanitarian law. A Professorial Lecturer in Residence at WCL, Susana teaches courses on gender and human rights law and on the responses of international humanitarian law and international criminal law to women in conflict, and further directs WCL’s Summer Law Program in The Hague.
Susana he has a rich background and expertise in the fields of human rights law, international humanitarian law, and international criminal law:
► Her most recent publications include "Reflections on the Judgment of the International Court of Justice in Bosnia’s Genocide Case against Serbia and Montenegro,"15 Human Rights Brief 2 (Fall 2007); with Katherine Cleary, "Victim Participation before the International Criminal Court," 17 Transnational Law & Contemporary Problems 73 (2008); and "Advances and Missed Opportunities in the International Prosecution of Gender-Based Crimes," 15 Michigan State Journal of International Law 137 (2007).
► Susana has directed the Legal Services Program at Women Empowered Against Violence, clerked for the Office of the Prosecutor at the International Criminal Tribunal for the former Yugoslavia, and worked with the Center for Human Rights Legal Action in Guatemala.
► She currently serves as co-chair of the Women’s International Law Interest Group of the American Society for International Law, and was recently awarded The Women’s Law Center 22nd Annual Dorothy Beatty Memorial Award, by the Women's Law Center of Maryland, for significant contributions to women’s rights.
Susana's chosen to dedicate her IntLawGrrls contributions to Sor Juana Inés de la Cruz who, as Susana describes in her post below, was a 17th century Mexican nun known as the America's 1st feminist writer. Sor Juana joins IntLawGrrls' other transnational foremothers in list at right, just below the "visiting from ..." map.
Hearfelt welcome!

"Gender, War & Peace"

Check this out, too: The Michigan State University Journal of International Law has just published a symposium edition entitled "Gender, War & Peace: Women's Status in the Wake of Conflict." Topics range from the role of women in peacemaking to the experiences of women during postconflict reconstruction to the exploitation of women and girls by U.N. peacekeepers. Contributing articles are our colleagues Adrien Katherine Wing, Iowa; Katherine Metres Abbadi, American-Arab Anti-Discrimination Committee; Penelope Andrews, City University of New York; Margaret E. McGuinness, Missouri; Kelli Muddell, International Center for Transitional Justice; Lori A. Nessel, Seton Hall; and Susan SàCouto, American University; and Valorie K. Vojdik, West Virginia.