Silenced Women- Gender Crimes

When we first think about wars and armed conflicts, we very often think about battlefields, burned villages, wounded soldiers, air-bombs and tanks. We tend to forget that civilians, women and children in particular, are at the centre of warfare and frequently fall victim to sexual violence in staggering numbers. The international community and the UN Security Council have established that gender crimes are part of the most serious of international crimes and should therefore be of great concern to the international community as a whole. In spite of this, international crimes involving sexual violence continue to be one of the most difficult crimes to prosecute.

This blog will briefly discuss the international criminal prosecution of gender crimes  by various international legal institutions.  

 To some extent, the post - World War II Trials of Nuremberg and Tokyo have both prosecuted gender related crimes even though the main focus was on crimes against peace.

The very first case in which rape was considered a crime against humanity was the Akayesu- case by the International Criminal Tribunal of Rwanda (ICTR). The Akayesu judgment provided a very broad definition of rape, which advanced the means of proving rape by removing the element of consent. Instead, it required an examination of the coercive circumstances under which the crime was committed. [1]

It’s sister tribunal, the  International Criminal Tribunal of the former Yugoslavia (ICTY) has also successfully prosecuted rape as a war crime, a crime against humanity, an instrument of genocide and has recognized rape and enslavement as forms and means of torture as well as forms and means of persecution. Some of the ground breaking cases in this area with regards to the ICTY are: Tadic, Krstic, Celebici and Furundzija. In addition, it was also established that gender crimes may form part of a joint criminal enterprise (JCE)  and both perpetrators and others participating in the joint criminal enterprise (JCE) can be held  responsible for intended or foreseeable crimes committed in furthering joint criminal enterprise (JCE). [2]  Since the landmark case of Akayesu, The ICTR has taken on very few other rape cases and unfortunately, only a handful of these resulted in convictions. This was in part due to numerous problems such as flawed criminal investigations, insufficient numbers of trained court professionals, fear of reprisals and the death of victims and victim-witnesses due to HIV/Aids. [3]

Victims Gender Crimes by Stephen Perry - Justice in conflictArticle 7 and 8 of the Rome Statute of the ICC determine that rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and other forms of sexual violence of comparable gravity are war crimes and crimes against humanity. In its first judgment, The Prosecutor v Thomas Lubanga Dyilo, Lubanga was not convicted of sex crimes as he was never charged with rape or other crimes relating to sexual violence. However, during the trial proceedings, prosecution witnesses gave extensive testimony concerning sexual violence committed against child soldiers by the Union of the Congolese Patriots (UPC). Despite the absence of formal charges of gender-based crimes in the case against Lubanga, extensive evidence on sexual violence was heard throughout the trial proceedings.[4]] It is expected that sex crimes will be included in future cases concerning the situation in Libya and Kenya once charges are formalized and arrest warrants sought for these specific cases.

When the Special Court of Sierra Leone (SCSL) was established in 2002 through an agreement between the UN and the government of Sierra Leone, it was designed to function as a hybrid court with the capacity to prosecute national as well as international crimes. In the Armed Forces Revolutionary United Front (RUF) 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. [5] Whereas, the ICTY had successfully tried rape and enslavement jointly, but not the crime of ‘sexual slavery’, the SCSL became the first tribunal to enter convictions for ‘sexual slavery’. When SCSL unanimously ruled that Charles Taylor was guilty of all 11 charges of war crimes and crimes against humanity, the crime of ‘sexual slavery’ was also included.

Victims watching the trial of Charles Taylor, inside the Special Court in Freetown. Photo by Issouf Sanogo-AFP-Getty Images

Victims watching the trial of Charles Taylor, inside the Special Court in Freetown. Photo by Issouf Sanogo-AFP-Getty Images

 Without a doubt, significant progress has been made to secure justice for gender related crimes in international/internationalized war crimes tribunals. Even though criminal prosecutions of international sex crimes have gradually become more mainstream, there still is much that needs to be done. In comparison with many other international crimes, gender related crimes are still much harder to prove due to factors such as evidence and witness testimonies among many other factors. Despite all the difficulties, international consensus has been reached to properly address such crimes either by legal procedures or through the option of Truth and Reconciliation  Commissions. In the past, in countries where crimes related to sexual violence have been ignored and went unpunished, victims, victims-families and even communities were affected for many years after the crimes had taken place. It fed anger, created distrust among peoples – even among later generations- and caused continued cycles of conflicts. Now that international as well as national courts go up the chain of power to prosecute top political and military leaders, it’s more likely that gender justice will be obtained in the future. [6]

On a social level, hopefully this will also help to reverse the shame and stigma that is very often wrongly attached to the victims, and will instead attach this to the perpetrators of these crimes. [7]

 

 Footnotes


[1] Prosecutor vs Gacumbitsi: The new definition for Prosecuting Rape under International Law by Alison Cole, International Criminal Law Review, Volume 8 Numbers 1-2, pp. 55-85.

[2] http://www.intlawgrrls.com/

[3] Making the perpetrators of mass sexual violence pay: international justice for gender related crimes by Alison Cole

[4]  http://www.iccwomen.org/  Newsletter (Special Issue # I)

[7] http://www.intlawgrrls.com/

 

Other Sources:

Towards a More Comprehensive Understanding and Effective Proving of International Sex Crimes by M. Bergsmo and A. Butenschøn Skre in Understanding and Proving International Sex Crimes, Beijing : Torkel Opsahl Academic E-Publisher 2012

Rape During War Is not Ineveitable: Variation in Wartime Sexual Violence by Elizabeth J. Wood in Understanding and Proving International Sex Crimes, Beijing : Torkel Opsahl Academic E-Publisher 2012

Towards rational Thematic Prosecution and the Challenges of International Sex Crimes by Morten Bergsmo and Cheah Wui Ling in Thematic prosecution of international sex crimes, Beijing : Torkel Opsahl Academic E-Publisher 2012

www.huffingtonpost.co.uk

 

 

 

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