Building vibrant and tolerant democracies
(Read the full article here or download it below) - By Alison Cole, Legal Officer for international Justice at Open Society Justice Initiative - 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 (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 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 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.
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.
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, 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.
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 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.
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 gender- based 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.