Prosecution of gender-based violence under international Law

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Prosecution of gender-based violence under
international Law
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From Nuremberg to the ICC

• International Military Tribunal (IMT)
• based on the Charter adopted in August 1945 by
  USA, France, USSR and England
• Crimes against peace, war crimes and Crimes
  against humanity
• Tried 21 accused leaders between November 1945
  and October 1946
• No Crimes of sexual violence in the statute
• No female prosecutor or judge

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12 major trials

• Based on the Control Council 10 Law (CCL10) dated
  20 December 1945
• Against professional groups such as jurists
  doctors, business leaders, personnel of
  concentration camps
• Rape is listed under Crimes against humanity

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International Military Tribunal for Far East
(IMTFE)

• Based on the executive decree of the Supreme
  Commander of the allied forces, General Mac
  Arthur
• Crimes against peace, war crimes and crimes
  against humanity
• No crimes of sexual violence in the Charter, but
  in a few cases rape was added in the indictment
  as war crime under inhuman or ill treatment, and
  failure to respect family honor
• No female judge or prosecutor

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International AD-HOC Tribunals ICTY/ITCR

• International Criminal Court for the former
  Yugoslavia (ICTY), based on UN Security Council
  Resolution 827, May 1993, located in The Hague,
  Netherlands
• Jurisdiction over genocide, war crimes and crimes
  against humanity in former Yugoslavia since 1991
• Rape is listed as Crime against humanity

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ICTY jurisprudence related to
gender crimes

• Recognizing sexual violence against females and
  males
• Prosecuting rape as a crime against humanity and
  as a war crime (grave breach of the Geneva
  Convention)
• Recognizing by-standers and failing to punish or
  prevent sexual violence

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International Criminal Court for
Rwanda (ICTR)

• Established by UN Security Council Resolution
  935,November 1994, based in Arusha, Tanzania
• Jurisdiction over genocide, war crimes and crimes
  against humanity
• Rape is included into the statute as a Crime
  against Humanity and as a war crime, violation of
  the common article 3 of the Geneva conventions

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ICTR Jurisprudence related to gender
crimes

• First Genocide judgment (Akayesu case) September
  1998 rape acknowledged as means of genocide
• Other forms of sexual violence acknowledged such
  as forced nudity
• Determining that sexual violence is used as means
  to inflict serious bodily and mental harm on
  extended group, such as family and community

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Internationalized Court Special Court for
Sierra Leone (SCSL)

• Established through Agreement between the UN and
  Sierra Leone, January 2002 located in Freetown,
  Sierra Leone
• Jurisdiction over the most responsible for
  serious violations of international humanitarian
  law and Sierra Leone law, committed in the
  territory of Sierra Leone since 30 November 1996
  
• Power to prosecute war crimes and crimes against
  humanity and certain domestic crimes
• Domestic and international judges, prosecutors
  and registry

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SCSL Jurisprudence related to gender crimes

• Statute included rape, sexual enslavement, forced
  prostitution, forced pregnancy and any other form
  of sexual violence of a similar gravity.
• 3 of 4 cases addressed gender crimes of rape and
  sexual slavery.
• For the first time forced marriage was
  acknowledged under crimes against humanity as
  another inhumane act.

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International Criminal Court (ICC)

• First permanent criminal Court, based on the Rome
  Statute (treaty), became operational on 1 July
  2002, currently 110 states parties based in The
  Hague, Netherlands
• ICC is a complementary Court that has only
  jurisdiction if national Courts are not able or
  willing to prosecute
• Jurisdiction over genocide, war crimes and crimes
  against humanity, and soon aggression

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• For the first time more specific sexual crimes
  such as rape, sexual slavery, forced pregnancy,
  enforced prostitution, enforced sterilization,
  trafficking in women and children including
  gender persecution and other forms of sexual
  violence of comparable gravity are listed.
• Code of procedure and evidence set a precedent in
  how to deal with cases of sexual violence related
  to consent, prior or subsequent conduct of the
  victim and credibility.

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Extraordinary Chambers in the Courts of Cambodia
(ECCC)

• Established through Agreement between UN and the
  Royal Government of Cambodia.
• Trying senior leaders and most responsible of
  Democratic Kampuchea from17 April 1975 until 6
  January 1979.
• All offices of the Court are composed by
  international and national staff.

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Prosecution of gender- based violence
before the ECCC

• The Agreement (2003) refers to the Rome Statute
  of the ICC for the definition of crimes against
  humanity.
• The implementing ECCC Law (2004) includes only
  rape as sexual crime under Crimes against
  humanity and is similar to the statute of the
  ICTR and is a step backwards.

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Prosecution of gender- based violence
before the ECCC

• Since the beginning of the investigations
  gender-based violence was ignored
• Hostile environment for victims of sexual
  violence. No female prosecutor, no female
  investigators and no female interpreters are
  employed. Training of staff on gender sensitive
  not conducted
• Civil Parties introduced forced marriage as a
  crime and achieved country wide investigations
• Other sexual crimes were investigated and victims
  came forward to tell their story.

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Conclusion

• Successful prosecution of gender related crimes
  needs
• Well gender-sensitive trained female and male
  staff
• Women in decision making positions
• Appropriate treatment and protection of victims
  of sexual violence related to the specificity of
  the crime Developing a strategy to identify
  victims and create a victim friendly environment
• Adopting guidelines for all offices how to deal
  with victims of sexual violence such as women,
  men and children

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• Trainings on background of the sexual crimes and
  special crimes such as forced marriage
• Acceptance that under coercive circumstances
  genuine consent of the victims can not be given
• Adequate investigations, clear indictments and
  sufficient evidence presented at trial guarantee
  that sexual violence in all of its forms is
  properly addressed.