By LARA ALBERT

An international law stocktake: 30 years of progress in fighting impunity for gender-based crimes and crimes of sexual violence committed during conflicts

 

Throughout history, gender-based crimes and crimes of sexual violence have been weaponised as tools of war. Despite being prohibited in some form from the start of the 20th century, these crimes continue to be aggressively perpetrated in conflicts.[1] In the past 30 years, the legal landscape has changed drastically, and the international community has made significant progress in fighting impunity for these crimes. This article will provide an international law stocktake of the progress made in this area. It will highlight the milestones achieved in the last 30 years, the current international framework for fighting these crimes, and address the remaining challenges in this area of law, before looking at what these evolutions imply for New Zealand.

 

Milestones in the past 30 years  

 

a. Establishment of the International Criminal Tribunal for the Former Yugoslavia (ICTY)

 

The ICTY's establishment in 1993 was a milestone in fighting against impunity for gender-based crimes and sexual violence in conflict.[2] The ICTY was the first international criminal tribunal to determine that rape could be a crime against humanity and to consequently prosecute perpetrators of sexual violence as war criminals.[3] This determination and the subsequent prosecutions were significant because they set a precedent for prosecuting gender-based crimes as international crimes.[4] One landmark case is that of Prosecutor v Kunarac, Kovac & Vukovic,[5] where the ICTY definitively stated that rape was not an acceptable part of war and could not be understood in wartime circumstances as the private act of a private individual.[6] Aside from such landmark cases, the ICTY has also paved the way for the establishment of other international criminal jurisdictions that have been instrumental in the fight against these crimes. Amongst these are the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, and the International Criminal Court.

 

b. Adoption of UN Security Council Resolution (UNSC) 1325

 

The United Nations Security Council's adoption of resolution 1325 in 2000 marks another milestone.[7] Resolution 1325 recognised the importance of women's participation in peacebuilding and conflict resolution and reinforced the need for protecting women’s rights in times of conflict.[8] The resolution placed a particular emphasis on protection against sexual violence and the need for greater accountability from perpetrators.[9] Following the adoption of resolution 1325, several other resolutions were adopted by the UNSC on similarly gender-sensitive topics. Critics state these resolutions place too much scrutiny on the prevalence of sexual violence and overlook other forms of gender-based violence and political/social marginalisation.[10] However, there is always room for improvement, and despite these criticisms, the resolution has been an essential tool for raising awareness of the impact of gender-based violence.

 

c. International Criminal Court (ICC)

 

The ICC was established in 2002 and is another instrumental mechanism that has contributed to the progress in fighting sexual and gender-based crimes in conflict. The ICC entered into force by virtue of the Rome Statute, which had included gender persecution as a crime against humanity for the first time. The ICC prosecutes the most severe levels of international crime, including war crimes, crimes against humanity and genocide. The ICC has contributed significantly to holding individuals accountable for crimes of sexual violence committed during conflict. One landmark case of the ICC is the conviction of the former Congolese militia leader who was charged with failing to prevent mass crimes of rape of the soldiers under his command.[11] This charge made an immense step toward preventing rape as a consequence of war. It set a higher standard for those in commanding positions to exert more control to prevent gender-based crimes and sexual violence.[12] In 2019 another landmark case was initiated: the Al Hassan case.[13] Indeed, this marked the first time a defendant was charged with gender-based persecution as a crime against humanity at the ICC.[14] 

 

Defining sexual violence and gender-based violence in conflict

 

Sexual violence is more straightforward to define than gender-based violence because sexual crimes have been the focus of criminal justice systems for longer. Crimes of sexual violence in conflict include any act of a sexual nature committed against a person's will (in the context of conflict).[15] Rape and other forms of sexual violence, which can also be gender-related, readily come under the sexual crime heading. The prosecution of these sexual violence crimes in the ICC considers the likelihood of the act and does not particularly focus on intent.

 

Formal recognition for gender-based violence has been more difficult because of the challenges in understanding its meaning and how it can be investigated.[16] Gender-based violence in conflict can be defined as any act of violence committed in conflict against an individual or group because of their gender.[17] Gender-based violence does not always come under the umbrella of sexual violence.[18] Gender persecution is an example of gender-based violence that is not sexual violence (for example: the Taliban prohibiting girls from attending school). Crimes like gender persecution are complex because their commission may not be apparent in the consequences of the crime or the nature of the victims but rather in the reasons behind the commission of the crime. Indeed, if a village was bombed during conflict, the victims would be countless and include persons of different genders, religions and ethnic groups – making the consequences indiscriminate. However, if the reason behind the bombing was that town's mayor passed a resolution providing sanctuary to transgender individuals, all of those harmed would-be victims of gender-based persecution. Essentially in the ICC, the intention behind the act characterises it as a gender-based crime.[19]

 

Recent developments

 

The fight against gender-based persecution is accelerating after a long period of inaction. The Al Hassan case, as stated above, paved the way for increased change in this field. There are currently three cases that include gender-based persecution charges underway in the ICC. The first is the Al Hassan case.[20] The second and third concern the killing of civilian men belonging to a particular ethnic group in Sudan and the Central African Republic, respectively.[21]

 

Moreover, in 2021, the ICC Prosecutor appointed two special advisors, one on sexual violence in conflict and the other on gender-based persecution, to advise the Prosecutor’s Office.[22] Following this appointment, on December 7, 2022, a policy of gender-based crime was adopted at an international level by the ICC.[23] This policy is a revolution in itself. Unprecedented is the inclusion, in an official ICC policy, of the expression LGBTQI+. This policy seeks to apprehend the multi-faceted aspects of gender-based persecution to facilitate the identification of gender-based crimes and their prosecution. Overall, the focus on sexual and gender-based crimes now appears palpable after thousands of years of dark ages in this respect.

 

Challenges

 

Even though much progress has been made in the past 30 years, change remains slow.  As reviewed above, gender-based violence is only now starting to be addressed and there is room for improvement. One of the key areas where international law could improve its stance is in providing survivors with adequate support and timely redress for the crimes they have suffered. Indeed, adequate and timely reparations are not yet a reality, even if the ICC is more victim centric than its predecessors. Recognition of all victims, direct and indirect, and the full extent of the harm they suffer would be beneficial for victims themselves but also for international justice as it would incentivise victims to come forward and bear witness.  Further, the gender-sensitive investigations need to be upscaled and comprehensive support services need to be developed (such as health care/legal aid/ phycological support). There also needs to be continued advocacy and awareness around the importance of combating impunity in these crimes.

 

Additionally, the issue of cumulative convictions persists. Cumulative convictions refer to a situation where individuals are convicted of multiple criminal charges arising from the same facts. The ICC is hesitant to apply cumulative convictions, and this can produce absurd results. This issue was highlighted in the Ongwen trial regarding the charges of enslavement and sexual slavery.[24] The ICC convicted Ongwen of sexual slavery while dropping the charge of enslavement. This was a disservice to victims because sexual slavery is a more specific offense than enslavement; therefore, by dropping the charge of enslavement, the ICC made it harder for survivors to prove their victimhood and get justice (as it limits the available legal avenues).

 

Relevance to New Zealand

 

New Zealand has a longstanding international and domestic commitment to promoting gender equality and preventing these forms of crime. New Zealand is a member of the ICC and a contributor. As a progressive democracy, New Zealand is responsible for supporting and promoting international developments to address and prevent these crimes. Further, New Zealand has the tools to exercise universal jurisdiction over international crimes, genocide, war crimes, and crimes against humanity (especially on behalf of persons who have fled to New Zealand after suffering from these crimes).[25] However, it has yet to exercise this and put into practice its international commitments. New Zealand could take a more proactive stance on these issues and contribute to building case law on gender-based and sexual crimes. If resources are lacking, it could join efforts with Australia and create a specialised unit to investigate international crimes committed worldwide. 

 

Conclusion

 

Over the past 30 years, many milestones have been achieved in the fight against sexual and gender-based violence in conflict. Important measures have been put in place by the international community. These include: the recognition of such crimes by international tribunals; the criminalisation of sexual violence; the understanding that gender-based crimes requires multipronged intersectional investigative approaches; the integration of gender-sensitive measures in peacebuilding; and the creation of specialised units to investigate and prosecute international gender sensitive issues. Definitions and strategies for prosecuting sexual and gender-based violence have been established. Most recently, since 2020, there have been significant developments in the formal recognition of gender-based crimes. However, there are persisting challenges that remain necessary to address.

 

[1] Geneva Convention Relative to the Protection of Civilian Persons in Time of War 75 UNTS 287 (opened for signature 21 April 1949 entered into force 12 August 1949), art 3.

[2] “About the ICTY” (20 October 2011) Legacy website of the International Criminal Tribunal for the former Yugoslavia<https://www.icty.org/en/about#:~:text=The%20ICTY%20was%20the%20first,VII%20of%20the%20UN%20Charter. >

[3] Mark Ellis “Breaking the Silence: Rape as an International Crime” (2007) 38 JIL 225 at 229.

[4] Ellis, above n 3.

[5] Prosecutor v Kunarac, Kovac and Vukovic [2002] ICTY IT-96-23-T.

[6] Solange Mouthaan “The Prosecution of Gender-based Crimes at the ICC: Challenges and Opportunities” (2011) 11(4) ICJR 775.

[7] SC Res 1325 (2002).

[8] “What is UNSCR 1325” (October 2020) United States Institute For Peace <https://www.usip.org/gender_peacebuilding/about_UNSCR_1325#:~:text=What%20is%20the%20focus%20of,in%20conflict%20prevention%20and%20peacebuilding>.

[9] SC Res 1325 (2002), at 10–11.

[10]Anne-Kathrin Kreft “The gender mainstreaming gap: Security Council resolution 1325 and UN peacekeeping mandates” (2017) 24:1 INTP 132.

[11] Houston John Goodell "The Greatest Measure of Deterrence: A Conviction for Jean-Pierre Bemba Gombo" (2011) 18:1 UC Davis J Int'l L 191 at 193.

[12] Kreft, above n 10, at 196.

[13] The Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud ICC-01/12-01/18.

[14] At 4650.

[15] Office of the Prosecutor “Policy Paper on Sexual and Gender-Based Crimes” (2014) ICC 3.

[16] Office of the Prosecutor “Policy on the Crime of Gender Persecution” [“Gender Persecution”] (2022) ICC 4.

[17] “Gender Persecution”, above n 16.

[18] At [23].

[19] At [39].

[20] The Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud ICC-01/12-01/18.

[21] The Prosecutor v Ali Muhammad Ali Abd-Al-Rahman ICC-02/05-01/20; and The Prosecutor v Mahamat Said Abdel Kani ICC-01/14-01/21.

[22] “ICC Prosecutor Mr Karim A.A. Khan QC appoints Seventeen Special Advisers” (17 September 2021) International Criminal Court < https://www.icc-cpi.int/news/icc-prosecutor-mr-karim-aa-khan-qc-appoints-seventeen-special-advisers>.

[23] “Gender Persecution”, above n 16.

[24] The Prosecutor v Dominic Ongwen ICC-02/04-01/15.

[25] “New Zealand: UN status” Clooney Foundation for Justice <https://justicebeyondborders.com/country/new-zealand/ >.

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