Rome Statute’s Role on Changing the Narrative on Conflict-related Sexual and Gender-based Violence
Authored By: Njomza Haxhibeqiri
Edited by: Aditi Pradhan and Pratyusha Sibal
17 July marks the anniversary of the Rome Statute and the conception of the International Criminal Court. In 22 years of its existence, ICC’s track record on prosecuting sexual and gender-based violence has not been promising. Can it at least contribute to changing the narrative around these crimes?
22 years after: what has ICC done about sexual and gender-based violence so far?
This week, ICC made it to the headlines with Al Hassan trial opening in front of the Trial Chamber. Al Hassan, is an alleged member and the head of Islamic police of Ansar Dine — a Salafi jihadist group that committed war crimes and crimes against humanity in Mali between April 2012/January 2014. He is charged with torture, rape, sexual slavery, forced marriages, persecution as crimes against humanity and war crimes. It is the first time an individual is charged with persecution based on gender, but it is not the first time an individual is charged with sexual violence.
In the past, ICC’s prosecution of sexual and gender-based violence has left a bitter taste for the survivors of sexual and gender-based violence. Germain Katanga and Jean Pierre Bemba, both of whom were charged with sexual and gender-based violence are the most illustrative examples. In Katanga’s case, the court established that the sexual and gender-based violence crimes had occurred but could not make the connection between the crimes and Katanga. He was found guilty on other charges, but not for sexual and gender-based violence. Bemba, on the other hand, was convicted at the first instance but was later on acquitted. The Appeal’s Chambers ruled that he had been convicted for crimes beyond the scope of the confirmed charges. The results of such cases left devastating effects on survivors who felt that their crimes were left unacknowledged.
Despite ICC’s poor track record of holding perpetrators of sexual and gender-based crimes accountable, the Office of the Prosecutor (OTP) has asserted and recognised the rights of the sexual and gender-based violence victims of survivors. They launched a Policy Paper on Sexual and Gender-Based Crimes in 2014 which amongst other things, gives a fulsome understanding of gender and expressly recognises that gender-based violence is not limited to sexual violence only and that sexual violence does not subject only one gender or group during the conflict. The Al-Hassan indictment reflects the OTP’s recognition of sexual and gender-based violence survivors and brings sexual and gender-based violence crimes into the spotlight. The indictment is historic as it sends a message that sexual and gender-based violence crimes are no longer just a side effect of war.
“The Office recognises that sexual and gender-based crimes are amongst the gravest under the Statute. Consistent with its positive complementarity policy, and with a view to closing the impunity gap, the Office seeks to combine its efforts to prosecute those most responsible with national proceedings for other perpetrators.”
Office of the Prosecutor — Policy Paper on Sexual and Gender-Based Crimes, June 2014
There is a risk that the positive effect of this policy on prioritising future cases on sexual and gender-based violence will diminish with the current Prosecutor’s mandate coming to an end next year, as the upcoming prosecutor might have a different strategic plan where sexual and gender-based violence does not get the required attention and priority . There is also the risk that Al Hassan may be acquitted for the crimes he has been charged with. What is left for the domestic advocates is to cooperate with the court to liaise with victims, fact-find and build a case against to connect him and other similar cases to specific crimes.
Is ICC’s impact limited to conviction?
Courts handling atrocity crimes face various difficulties in proving guilt beyond any reasonable doubt. At times, they face difficulties in establishing the link between the chain of command, the crimes committed and the perpetrator. Other times, victims are hesitant to come forward or are blackmailed against speaking the truth. Even still, at times, it is the flawed indictments that result in acquittals.
However beyond guilty verdicts, there is so much more that we can do with the documentation and facts which arise during investigation and trial. These enter the record of history and can shape the way we tell stories about war and sexual and gender-based violence, their links to harmful gender and sexual stereotyping in society, and the way present day laws and practices continue to perpetuate them, long after the war is over. They also teach us new ways to condemn criminal behaviour and center victims’ immediate needs as an inalienable part of the justice process.
For example, the ICC set up a Victim’s Trust Fund to support victims in situation countries with psychological rehabilitation, physical rehabilitation, and material support even when those cases are not directly linked to the cases in front of the Court. These programmes apply a gender-perspective and implement initiatives for sexual and gender-based violence survivors and victims by working towards ensuring basic health services to them, educational grants, trauma-counselling and cognitive and behavioral therapy. The support they provide on a personal level, is complemented by community mobilisation initiatives where groups from different ages and genders participate in advocacy where gender-based violence and gender norms are explicitly discussed. These activities are carried out in Uganda, CAR, DRC, Mali and Kenya and it is planned that they will expand to other countries as well.
Individuals like Katanga may have been acquitted of the sexual and gender-based violence charges they faced in ICC, but the fact that individuals suffered from sexual and gender-based violence during the conflict in DRC has been established. Assistance programs like the ones carried out by the Trust Fund make the sexual and gender-based violence survivors direct beneficiaries of such assistance on the one hand, and may play a role on triggering a discussion around sexual and gender-based violence among the local population, thus slowly progressing towards changing the discourse around the position of sexual and gender-based violence survivors and victims and fight stigmatisation in their respective countries. Such initiatives should also be replicated for sexual and gender-based violence crimes which are committed in the context of peace.
Documentation from ICTY archives have been re-created to curate simplified interactive multimedia narratives to change the discourse of war. One example is SENSE — a transitional justice centre from Croatia — that used the ICTY archives to curate multimedia narratives that have reached thousands of individuals at exhibitions, museums and other venues in Belgrade, Zagreb, Bosnia & Herzegovina and in all municipalities of Kosovo.
Similarly, testimonies of sexual and gender-based violence — e.g. from DRC, Uganda or Mali — that are proven to have been committed during the war, can be recreated into educational materials to help people understand how rape and other sexual and non-sexual gender-based violence which are committed with impunity in times of peace, bleed into wartime and become an inseparable part of war (as during peace). This way, the voices of sexual and gender-based violence survivors would be amplified, and the traditional narrative where survivors of sexual and gender-based violence are perceived as a negligible side effect of war and society can slowly be debunked.
These materials could also be used to build professional capacities on what lessons ICC has learnt from its past challenges, and how such challenges should be addressed or handled in the future by prosecutors, lawyers, judges and human rights defenders domestically. Although the focus was not sexual and gender-based violence, ICTY has implemented such initiatives in the Western Balkans in the past by assisting domestic courts to establish local chambers or departments that deal with war crimes and have trained domestic lawyers on various practical topics. The success of the ICTY training and initiatives may be arguable, but the idea on its own could bring viable results if tailored and implemented carefully. For example, young professionals can be trained to apply a gender lens to navigate the intricacies of prosecuting sexual and gender-based violence such as affirmative consent in cases of rape, survivors’ discretion and confidentiality, acceptance that people of all genders can be subjected to such crimes, and most importantly — that sexual and gender-based violence is a weapon and expression of power in contexts of both war and peace.
The Rome Statute, trial documents, prosecution policy on sexual and gender-based violence and learning lessons on investigating and prosecuting sexual and gender-based violence are seeds from which to sprout conversations around domestic prosecutions of sexual and gender-based violence and localise gender competent standards into the domestic legal framework and practices.
Survivors of sexual and gender-based violence are entitled to the same level of recognition as survivors of other crimes. Apart from formal recognition of this under the law, initiatives such as the ones mentioned above must be integrated into national education so that one day, it will become a part of our global consciousness.
