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A Academic article Making the perpetrators of mass sexual violence pay: International justice for gender-related crimes Alison Cole Alison Cole is the Open Society Justice Initiative Legal Officer for International Justice. She has worked with a range of international courts, first in prosecutions at the International Criminal Tribunal for Rwanda, and most recently as legal officer with the Co-Investigating Judges at the ECCC/Khmer Rouge tribunal in Phnom Penh. She has also worked with investigations at the International Criminal Court, and at the joint Appeals Chamber of the International Criminal Tribunal for Rwanda and the Former Yugoslavia. She has also worked on human rights projects in Uganda, Zambia, India and Israel and worked on death row projects in Jamaica. She holds a BA in law from Cambridge University and obtained her Master of Law degree from Harvard Law School. 58 Making the perpetrators of mass sexual violence pay: International justice for gender-related crimes Throughout the world, sexual violence is endemic in armed conflict. Past and current conflicts have demonstrated the horrific levels of suffering inflicted on women and girls throughout Africa. During the genocide in Rwanda, women were victims of mass rape, sexual mutilation and held as sexual slaves. There have been regular reports of gang rape committed during the conflict in the Democratic Republic of Congo (DRC) that have resulted in extreme physical injuries such as fistula. Most recently, in the war in Libya, it has been documented that women were targeted for sexual violence due to their supposed political allegiance. International law recognises that violence committed against women and girls during hostilities can constitute an international crime.1 The international community and the UN Security Council have also affirmed that sex crimes form part of the most serious crimes of concern to the international community as a whole. 2 However, obtaining gender justice poses unique challenges. The prevalence of sexual and gender-based violence against women is not matched by an equally prevalent consideration of women’s issues by the law: sex crimes are notoriously under-investigated and few cases make it to the courtroom. Despite increased efforts to address this issue, there is still much to be done at both the national and international level to ensure that there is sufficient commitment and sufficient capacity to appropriately pursue international justice for gender-related crimes. Gender justice: the legal basis One of the key challenges in investigating and prosecuting international gender crimes is the legal complexity of the cases. International crimes are different from national crimes because they require proof of an added level of severity that would invoke international concern – often cited as ‘shocking the conscious of humanity’. 3 This added level of seriousness arises when crimes that can also exist under national law, such as rape and other forms of sexual violence, are committed in a context that will elevate the allegation to either a war crime, a crime against humanity or genocide. Purely domestic crimes require proof of the guilty act (often known by its Latin term ‘actus reus’) and the guilty mind 59 (often known by its Latin term ‘mens rea’). However, to rise to the level of an international crime, additional elements are required.4 After establishing the act and the intent for the crime base allegation, such as rape, it is necessary to prove that the crime meets the ‘threshold test’, which elevates it to the level of an international crime. For war crimes, this threshold test requires proof that the crime, such as rape, took place in the context of an armed conflict. For crimes against humanity, it is necessary to demonstrate that the rape took place in the context of a widespread or systematic attack against a civilian population. For genocide, the crime is found to be genocidal if it is committed with the intent to destroy the group to which the victim belongs. Moreover, it is necessary to link the international crime to a specific accused person. This is known as the ‘mode of liability’ and it is the means by which the accused is to be considered responsible for the crime base allegations. This can either be on the basis of individual responsibility or superior/command responsibility for political or military leaders. Over the past twenty years, a broad range of crimes have been recognised in international courts as gender crimes if the requisite elements are satisfied, including rape, torture, persecution, sexual slavery, trafficking, sexual mutilation, forced impregnation, forced marriage, forced nudity, forced sterilisation and forced abortion. 5 This is an unprecedented advancement of the law. Gender justice: the evidentiary basis Aside from the additional legal complexity behind prosecuting an international crime involving sexual violence, there are also unique evidentiary challenges. Forensic evidence is rarely available and the perpetrator(s) may be unknown. For the majority of the cases of rape as an 60 international crime, the pressure of proving the case rests on the oral testimony of the victim, and the efforts of the prosecution to connect this with expert or insider witnesses to establish the threshold tests and to demonstrate the linkage to the accused. Often, the accused – not necessarily the physical perpetrator – is someone far from the battlefield, but who nonetheless had the ability to prevent, halt or punish the crimes and failed to do so, or who knew it was likely to occur and failed to take necessary steps to prevent the crimes despite a clear duty to do so. Although there are significant efforts to uncover the underlying facts regarding armed conflicts around the world and in Africa, information relating to sexual and gender-based violence is generally the last to come to the fore. There are many reasons for this delay. For example, in most cultures there is a general taboo regarding sex and this taboo is even greater for sexual violence. There are often grave social repercussions against victims who raise allegations of rape. Many survivors are wrongly stigmatised by their communities, which in turn impacts on their social acceptance and future prospects for building personal security through generating income and starting a family. In such circumstances, there is a reluctance to volunteer evidence or respond to those seeking to verify acts of sexual violence, including by family members. Additionally, justice officials frequently ignore sexual violence. Although there is increasing awareness of the prevalence of gender-based violence – and the devastating effect these crimes have on individuals, their families and entire communities or associated groups – allegations are only able to be appropriately processed if there is a commitment from the start of an investigation to design evidence collection and to interview survivors in a gender-sensitive manner. For investigations to be most appropriate for achieving gender justice, investigators must first and foremost consider the security concerns of victims and ensure that appropriate measures are taken to ensure confidentiality. The inclusion of female Making the perpetrators of mass sexual violence pay: International justice for gender-related crimes “The Akayesu case went on to establish the landmark finding that rape could constitute genocide through physical and mental harm to the targeted group. It was also the first conviction of rape as a crime against humanity.” investigative staff, including investigators, interpreters, security and support personnel, has proven to be critical in creating an appropriate atmosphere. During trial, the inclusion of female prosecutors and judges facilitates achieving a more gender-sensitive trial process. other war crimes tribunals in the former Yugoslavia and elsewhere have made enormous, yet still insufficient, strides in investigating and prosecuting sex crimes.7 A number of such courts have been established within Africa or they have taken on situations concerning events in Africa. It is also critical that investigators and prosecutors think outside the box in terms of collating relevant evidence and identifying alternative means of proof. For example, photographic evidence that suggests sexual violence such as images of female corpses with their underclothing removed can corroborate oral testimony from victims. In many situations, systematically asking each witness on the stand about the prevalence of sexual violence, including peacekeeping personnel, humanitarian workers and other non-victim witnesses, can demonstrate the extent to which sexual violence was known to be taking place during a conflict or was condoned by senior leaders. The International Criminal Tribunal for Rwanda (ICTR) was established by the United Nations Security Council following the genocide in 1994.8 Although Human Rights Watch documented vast and systematic levels of sexual violence targeting women on the basis of their ethnicity,9 the ICTR consistently failed to bring cases against alleged perpetrators. The very first case, Akayesu, omitted sexual violence charges all together and it was only through the astute engagement of women’s rights activists and Judge Navi Pillay that the indictment was amended after a witness offered information regarding the rape of her six-year-old daughter and a subsequent witness stated she knew of many rapes. The Akayesu case went on to establish the landmark finding that rape could constitute genocide through physical and mental harm to the targeted group. It was also the first conviction of rape as a crime against humanity. The Akayesu judgment also provided a powerfully broad definition of rape, which greatly advanced the means of proving rape by removing the element of consent and instead requiring an examination of the coercive circumstances under which Gender justice: the courts Gender-related crimes were prosecuted to a limited extent in the post World War II trials in Nuremberg and Tokyo, although the primary focus of those trials was crimes against peace, which were considered the supreme crimes.6 In the past twenty years, 61 the crime was committed.10 However, since that landmark case, the ICTR has only pursued a few other rape cases and only a handful of these have been successful due to a range of problems, including flawed investigations, the death of victimwitnesses due to HIV/AIDS, failure to locate witnesses years after the events, fear of reprisals, judges with insufficient training in understanding gender crimes, etc. The Special Court for Sierra Leone (SCSL) was established in 2002 through an agreement between the UN and the government of Sierra Leone.11 Unlike the ICTR, which was purely international in terms of the law it could apply and the staff that it recruited, the SCSL was designed to be a hybrid court with the capacity to prosecute national and international crimes and to hire both nationals and internationals. The first SCSL case against members of the Civil Defence Forces (CDF) did not contain any sexual violence charges because sexual violence was not factored into the initial stages of the investigative strategy. However, in the subsequent Armed Forces Revolutionary Council (AFRC) case, the provisions of the crime against humanity of other inhumane acts were used to articulate a new form of sexual violence, namely, the crime of forced marriage. Subsequently, the Special Court was the first tribunal worldwide to enter convictions for ‘sexual slavery’ in the Revolutionary United Front (RUF) case. The Tribunal for the former Yugoslavia had successfully tried ‘rape’ and ‘enslavement’ jointly, but not ‘sexual slavery’. The Court is awaiting the Trial Chamber Judgment of former Liberian president Charles Taylor, who is charged with responsibility for a number of crimes, including sexual violence crimes. Both the ICTR and SCSL are courts with limited mandates and both are due to close in the near future. However, the International Criminal Court (ICC) is a permanent institution, which is open to all countries in the world to accept its jurisdiction and thereby become state parties.12 The ICC has jurisdiction over nationals of states parties and over people 62 who are on the territory of states parties who are alleged to have committed certain international crimes after July 2002. The UN Security Council may also refer a situation to the ICC. To date, all seven of the cases under consideration at the ICC have come from Africa. Three state parties, Uganda, DRC and the Central African Republic, have initiated referrals concerning events taking place in their countries to the ICC. There have been two referrals from the UN Security Council regarding the non-state parties of Libya and Darfur, Sudan. And finally the ICC prosecution, of its own volition, has sought to commence proprio motu investigations in Kenya and most recently in Ivory Coast. All seven situations have invoked charges for sexual violence, except the very first case at the ICC – the Lubanga case – despite evidence of widespread sexual violence. It should be emphasised that national courts hold the primary responsibility for prosecuting international crimes. This is known as ‘complementarity’ and is provided for in the Rome Statue of the ICC.13 In principle, the ICC targets those most responsible for mass atrocities, with the remainder of the alleged perpetrators to be addressed in national settings. Therefore, the ICC was designed to ‘complement’, not replace, domestic justice efforts. To date there have been limited attempts to pursue international criminal cases in national courts, in part due to the complexity of the cases and the often influential positions of the perpetrators and the difficulty in arresting them. However, the mobile gender courts in South Kivu in DRC have demonstrated a model for prosecuting rape and other serious crimes at the domestic level.14 These courts have prosecuted hundreds of mostly direct physical perpetrators of sexual violence. In February of 2011, a mobile military court successfully prosecuted a rape as a crime against humanity case against four senior army officers and five lower level soldiers for the New Year’s Day mass rape attack in the village of Fizi. It is a promising indication of Making the perpetrators of mass sexual violence pay: International justice for gender-related crimes what can be achieved with targeted national support when domestic courts are both able and willing to prosecute very grave crimes. However, international support is often critical to the success of domestic war crimes trials. Conclusion Although the legal framework is complicated, there are now nearly two decades worth of best practices and lessons learned to inform national and international actors pursuing gender justice. There is a great need to understand the experience of sexual violence survivors and the legal processes following investigations in Africa, particularly given the existence of both continuing armed conflicts and past hostilities, which have not yet been subject to accountability efforts. This is even more critical given that all ICC situations are currently from Africa. Obtaining gender justice for international crimes requires commitment and continual efforts. Even as awareness increases, there will always be a need to maintain vigilance to respond to evolving forms of sexual and genderbased violence and to draw attention to the prevalence of crimes committed disproportionately against women and girls in emerging crisis situations. Ultimately, the objective behind gender justice is to reinforce the responsibility to protect. The characterization of rape and other forms of sexual violence in conflict as an international crime adds to the zero tolerance policy regarding sexual and gender-based violence and the objective of universal gender justice. E Endnotes 1. See Kelly Askin, War Crimes Against Women: Prosecution in International War Crimes Tribunals (1997). 2. See for example: UN Security Council Resolution 1325 on women and peace and security (S/RES/1325 31 October 2000); General Assembly Resolution on eliminating rape and other forms of sexual violence in all their manifestations, including in conflict and related situations (A/RES/62/134, of 18 December 2007): http://www.un.org/womenwatch/daw/vaw/v-work-ga.htm. 3. See the Preamble of the ICC Rome Statute: http://www.icc-cpi.int/Menus/ICC/Legal+Texts+and+Tools/Official+Journal/Rome+Statute.htm. 4. See Antonio Cassese, International Criminal Law (2008). 5. See Anne-Marie L.M. de Brouwer, Supranational Criminal Prosecution of Sexual Violence (2005). 6. See Kelly Askin, War Crimes Against Women: Prosecution in International War Crimes Tribunals (1997). 7. See Alison Cole, International Criminal Law and Sexual Violence, chapter in Rethinking Rape Law (2010). 8. See www.unictr.org. 9. Binaifer, Nowrojee, Shattered Lives, Human Rights Watch (1996), http://www.hrw.org/reports/1996/Rwanda.htm 10. Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, Volume 8, Numbers 1-2, pp. 55-85 (2008). 11. See http://www.sc-sl.org/. 12. See http://www.icc-cpi.int/. 13. See http://www.soros.org/initiatives/justice/focus/complementarity. 14. See www.soros.org/initiatives/justice/articles_publications/publications/congo-mobile-20110719. 63