Ending Impunity for Gender Crimes under the International Criminal Court
Barbara Bedont, Assistant Coordinator, Democracy and Justice Program,
International Centre for Human Rights and Democratic Development
Katherine Hall Martinez, Deputy Director, International Program,
Center for Reproductive Rights
The Brown Journal of World Affairs, Vol. VI, Issue 1: 65-85. Published 1999
[T]hey brought her fourteen-year-old son and forced him to rape her. . . . On [another]
occasion, I was raped with a gun by one of the three men. . . in the room. . . . Others
stood watching. Some spat on us. They were raping me, the mother and her daughter at
the same time. Sometimes you had to accept ten men, sometimes three. . . . I felt I wanted
to die. . . . The Serbs said to us, "Why aren't you pregnant?". . . . I think they wanted to
know who was pregnant in case anyone was hiding it. They wanted women to have
children to stigmatize us forever. The child is a reminder of what happened.
- Anonymous, Bosnia 1
Introduction
For millennia, women and girls have suffered rape, sexual slavery, forced pregnancy and
other brutal forms of sexual and gender violence during armed conflict. Like other forms
of war related brutality, such violence is often sanctioned, tolerated or ordered by
military, paramilitary or other governmental actors. Although the international
community has made some strides in outlawing and punishing atrocities committed
during armed conflict through the development of international humanitarian law,
gender-based violence has been consistently marginalized or dismissed as a natural
consequence of war.
The international community's conclusion of a treaty in July 1998 to create a permanent
International Criminal Court (the ICC or the Court) to investigate and punish genocide, crimes
against humanity and war crimes in circumstances in which national authorities fail to do
so was indeed an important step forward for humankind. Women's rights activists viewed
the negotiations for the ICC as an historic opportunity to address the failures of earlier
international treaties and tribunals to properly delineate, investigate, and prosecute
wartime violence against women. Building on their successes in drawing attention to
atrocities suffered by women in recent conflicts in Bosnia and Rwanda, women's rights
advocates ensured that history did not pass women by yet again. The recognition that
rape and other forms of sexual violence are among the most serious crimes under
international humanitarian law was one of many historic accomplishments of the July
1998 United Nations Diplomatic Conference of Plenipotentiaries that negotiated the
Rome Statute of the International Criminal Court (Rome Statute). The Rome Statute's
gender provisions are an encouraging example of how the development of the
international women's rights movement is positively impacting international human rights
and humanitarian law despite the strong influence of conservative political forces.
Part I of this article will provide background on the negotiating context with respect to
gender issues and the effort of the international women's human rights movement to
influence the Rome Statute. In the succeeding three parts, the article will summarize the
provisions adopted under three broad categories of issues covered by the Rome Statute
that will affect the Court's ability to carry out justice for women. In each of these parts,
we include some discussion of the prior treatment of these issues under international law,
as well as the background and politics surrounding the adoption of these provisions. In
Part II, the article will summarize the Rome Statute's codification of various acts
constituting sexual and gender violence as the most serious crimes under international
humanitarian law. Part III will examine the structural provisions ensuring that women
participate in all levels of the ICC's operations and requiring that among the ICC's staff
there be adequate expertise for dealing with sexual and gender violence. Part IV
summarizes those provisions that will aid in safeguarding the rights of victims of sexual
and gender violence, including those guaranteeing gender sensitive methodologies during
investigation and trial, as well as adequate protection of victims and witnesses.
I. THE NEGOTIATIONS ON GENDER ISSUES
During the early stages of the drafting of the Rome Statute, it became apparent that both
governments and mainstream human rights groups were paying little attention to gender
issues. Cognizant of this, a group of women's human rights activists began lobbying
government delegations at the February 1997 Preparatory Committee (PrepCom)
meeting. These activists subsequently founded the Women's Caucus for Gender Justice in
the ICC2 with the objective of ensuring a gender perspective throughout the Statute. The
Women's Caucus rapidly expanded its base of support to include, by the time of the
Rome Diplomatic Conference, approximately two hundred women's organizations from
all regions of the world. Women's Caucus members were active lobbying in their
countries' capitals and participating in the PrepComs and the Rome Diplomatic
Conference.
In many ways, it was an opportune time to lobby for an "engendered" statute for an
international criminal tribunal. The achievements of the women's rights movement at the
World Conference on Human Rights, held in Vienna in 1993 (the Vienna Conference),
the Fourth World Conference on Women, held in Beijing in 1995 (the Beijing Conference), as
well as other fora, gave the Women's Caucus authority for many of its proposals. At the
Vienna Conference, governments condemned gender-based violence and violence against
women in war situations and called on governments to integrate women's rights into the
mainstream of the UN system.3 The Beijing Platform for Action committed governments to
"integrat[ing] a gender perspective in the resolution of armed or other conflicts and
foreign occupation."4 At the same time, the recent conflicts in the former Yugoslavia and
Rwanda, and the publicized mass rapes committed during those conflicts, shocked the
conscience of the world and spurred the creation of the two Ad Hoc Tribunals. The issue
of sexual violence in war had therefore received much attention by the time of the Rome
Diplomatic Conference.
As a result, the majority of states at the Rome Diplomatic Conference supported the
integration of gender provisions in the statute.5 The Women's Caucus, nonetheless, had to
contend with a well-organized opposition, intent on undermining the Court's ability to
appropriately address sexual and gender crimes. This opposition consisted of an alliance
between some anti-choice groups, mostly from the U.S. and Canada, and a few
delegations representing states where religion is used to justify discriminatory treatment
of women. These delegations included the Vatican, and countries that followed its lead
on certain issues, along with a core group of Islamic states. These delegations considered
the proposals of the Women's Caucus for Gender Justice as a threat to their religious
beliefs. Although the Caucus' agenda was supported by a broad majority of delegations,
only a few states were willing to fight for it against the impassioned minority opposition.
Furthermore, the states which were consistently willing to take a lead on gender issues,
such as Canada, Australia, New Zealand, and Samoa, 6 found themselves on the defensive
because of procedural obstacles in the negotiations. Namely, the Rome Treaty
Conference was committed to working through the statute's provisions by consensus.
This allowed the hostile states to obstruct the efforts to address gender crimes within the
Rome Statute by refusing to accept wording favored by the majority, thereby forcing
many provisions to be watered down.
This group of opponents focused on two fronts of attack. Firstly, as will be discussed in
more detail below, the hostile states were intent on undermining the inclusion of the
crime of "forced pregnancy" due to misleading linkages to the issue of the legalization of
abortion. Secondly, the hostile states opposed the use of the term "gender" anywhere in
the statute. 7 The Women's Caucus pushed for the term "gender" as opposed to "sex"
because the latter is restricted to the biological differences between men and women,
whereas gender includes differences between men and women because of their socially
constructed roles. Similarly, "gender crimes" is preferable to "sexual violence" because it
includes crimes which are targeted at men or women because of their gender roles which
may or may not have a sexual element. Some Arab states objected to the term "gender,"
claiming the term may be understood to include sexual orientation. However, their
position on this issue also served as their justification for obstructing many provisions
throughout the statute that promoted women's rights. The dispute regarding the
terminology threatened the inclusion of certain gender crimes, of a non-discrimination
clause, and of special protective measures under the procedural provisions.
The negotiations regarding the definition of gender therefore became central to many
other gender issues. A definition of gender from the Report of the Secretary General to
the Beijing Platform for Action was circulated among those delegates negotiating this
issue. The Secretary General's definition acknowledged that the roles played by men and
women are contingent on the social and economic context and can vary accordingly. 8
Annex IV to the Beijing Platform for Action was also circulated to the delegates which
stated that for the purposes of that document, the word "gender" was intended to be
interpreted as it was in ordinary, generally accepted usage.9 Based in part on these
documents, the following provision was negotiated: "it is understood that the term
'gender' refers to the two sexes, male and female, within the context of society. The term
'gender' does not indicate any meaning different from the above." 10
As a result of this negotiated definition, the terms "gender" and "gender crimes" were
utilized in many provisions of the Rome Statute instead of the narrower terms "sex" and
"sexual violence." This was a significant victory, firstly, because it continued the wellestablished practice of using this broader concept in international instruments. The
definition refers to "context of society," and therefore, includes the sociological
differences between men and women. The second sentence, while somewhat tautological,
suggests that the concept cannot be expanded beyond its current understanding as set out
in the first sentence. The definition's acceptance was important because it cleared the way
for many other provisions, among them a Women's Caucus proposed non-discrimination
provision.
The non-discrimination provision which was ultimately adopted states that the
application and interpretation of the law by the ICC must be consistent with
internationally recognized human rights, and be without adverse distinction founded on
gender, age, race, colour, language, religion or belief, political or other opinion, national,
ethnic or social origin, wealth, birth or other status. 11 This clause was essential to ensure
that prosecutors, investigators, registrars, and chambers of the Court fairly treat
individuals involved in the ICC process. The non-discriminatory clause will benefit both
males and females, victims and accused alike. The states hostile to gender issues
threatened to remove the clause completely because it included gender. It was sadly
ironic that a group of Catholic and Islamic delegations, in their zeal to marginalize gender
issues, would endanger a clause that would also protect individuals from religious
discrimination. The fact that such an important clause was threatened over the
disagreement on gender demonstrates how those states were more concerned with
opposing gender provisions than protecting other basic rights. Fortunately, the
compromise reached on the definition of gender saved this provision.
In general, the negotiations regarding the gender provisions illustrate the continuous
struggle faced by those seeking to advance women's rights. The Women's Caucus often
found itself fighting to retain concepts that had been well accepted in other international
instruments, including the Vienna Conference's Programme of Action and the Beijing
Conference's Platform for Action. However, unlike those non-binding human rights
instruments, the Rome Statute is a treaty that creates a permanent judicial body
empowered to determine individual criminal responsibility. As will be seen in the next
sections describing the negotiations on separate issues, when it came time for states to
fulfill their obligations under previous instruments, many states wavered in the face of
opposition from states hostile to women's equality. Few, if any, government delegations
would have been willing to expend the political capital needed to secure the provisions
described herein without the persistent lobbying efforts of the Women's Caucus. Indeed,
even the few willing to do so would not have been successful without the pressure
exerted by Women's Caucus members on governments in every region of the world. In
this way, the Women's Caucus proved to be an essential catalyst in ensuring the
integration of a gender perspective throughout the Rome Statute.
II. THE GENDER CRIMES IN THE ROME STATUTE
The most significant provisions of the Rome Statute regarding women's rights are
contained in the definitional sections of the statute. The definitional sections in Part II of
the statute define the crimes that will come within the jurisdiction of the Court. The
impunity long enjoyed by perpetrators of gender crimes was perpetuated by the
inadequate treatment of these crimes under prior legal instruments. Thus, the recognition
of these crimes under Part II was key to ending this impunity for gender crimes.
The Rome Statute. Articles 7 and 8 in the Rome Statute defining war crimes and crimes
against humanity, respectively, include a subparagraph listing a broad spectrum of
gender-specific crimes. The enumerated crimes are: rape, sexual slavery, enforced
prostitution, forced pregnancy, enforced sterilization and any other form of sexual
violence also constituting a grave breach/serious violation of the Geneva Conventions
(regarding war crimes) 12 or other forms of sexual violence of comparable gravity
(regarding crimes against humanity). 13 This list of sexual violence crimes is included
under the definition of war crimes for both international and non-international armed
conflict. In addition to this list, two other gender-specific crimes have been enumerated
under crimes against humanity. The first is the crime of persecution against any
identifiable group or collectivity on various grounds, including gender. 14 Secondly, the
crime of "enslavement" is defined as the exercise of any power attaching to the right of
ownership over a person, including in the course of trafficking in persons, in particular
women and children.15
The Significance of the Gender Crimes Provisions. The provisions on gender crimes
under the definitional sections of the Rome Statute are a historic development under
international law. Previous international humanitarian law treaties failed to properly
address sexual and gender violence. Neither the Hague Conventions respecting the Laws
and Customs of War nor the Nuremberg Charter contained in the Agreement for the
Prosecution and Punishment of Major War Criminals after World War II included any
mention of sexual violence. 16 Control Council Law No. 10 on the Punishment of Persons
Guilty of War Crimes and Crimes against Humanity for Germany included rape as a
crime against humanity though not as a war crime. 17 This was significant because the
definition of crimes against humanity requires that the acts in question be either
widespread or systematic. The ways in which sexual violence is committed during war
makes it difficult to prove these conditions. 18 Sexual violence crimes form part of the
culture of war and are often committed on a sporadic basis. War crimes, in contrast, do
not require any proof of systematic planning and therefore have a lower threshold of
proof that is more appropriate for sexual assault cases. P> Another troubling issue has
been the underrecognition of sexual violence crimes as constituting "grave breaches" of
the 1949 Geneva Conventions on the laws of war. Grave breach crimes are those crimes
that are so horrible that their commission is deemed a concern to the international
community as a whole. Sexual violence crimes are not included in the articles
enumerating grave breaches under the 1949 Geneva Conventions19 (nor under article 3
common to all of the Geneva Conventions, which lays out minimum protections during
the course of armed conflict). Instead, article 27 of the Fourth Geneva Convention states
that women shall be protected against "any attack on their honor, in particular, rape,
enforced prostitution, or any form of sexual assault." 20 This characterization of sexual
violence as an attack against a woman's honor was based on the stereotype that a woman
is shamed by being the victim of rape and denies the great physical and emotional harm
suffered as a result of sexual violence crimes. The 1977 Additional Protocols to the
Geneva Conventions continued this practice of subsuming these crimes under categories
dealing with honor and dignity. The Protocols include rape, (en)forced prostitution, and
any form of indecent assault but connect them to respect for women or "outrages upon
personal dignity, in particular, humiliating and degrading treatment." 21
This inadequate treatment in prior instruments was duplicated in the statutes of the two
Ad Hoc Tribunals which were set up for the prosecution of persons responsible for
serious violations of international humanitarian law in the former Yugoslavia and
Rwanda (the ICTY and the ICTR, respectively). The statutes of the two Ad Hoc
Tribunals included the crime of rape as a crime against humanity, but omitted it from the
other categories of crimes. Once again, rape was included neither as a grave breach of the
Geneva Conventions, nor as a violation of the laws or customs of war. Nor were sexual
violence crimes other than rape enumerated. 22
The lack of explicit mention of sexual violence crimes as grave breaches failed to give
due recognition to the seriousness of the crimes. This treatment was discriminatory since
it treated with less seriousness violence which occurs mostly to women in relation to
violence which occurs to both men and women. 23 The prohibition against adverse
discrimination in international law therefore necessitated the separate enumeration of
gender crimes under international humanitarian law. 24 Moreover, the inferior treatment
of gender crimes perpetuated their underinvestigation and underprosecution. For
example, in the tribunals established after the Second World War to prosecute German
and Japanese war criminals, gender crimes were not pursued with the same degree of
diligence as other crimes. 25 Rape was included in the indictments of some of the
individuals tried by the Tokyo Tribunal but not in any of the indictments of the
Nuremberg Tribunal. 26 As another example, despite the overwhelming evidence of mass
rapes during the 1994 genocide in Rwanda, the ICTR did not include any charges of rape
in its indictments until 1997 after concerted pressure from civil society. 27
The fact that sexual violence crimes had not been explicitly listed as grave breaches
under the Geneva Conventions or included as such under the ICTY and ICTR Statutes
was problematic, though not determinative of their status under international law.
International legal experts and courts increasingly came to recognize that these crimes are
in fact grave breaches because the acts involved also constitute elements in the definition
of other crimes listed as grave breaches. 28 For example, rape may constitute torture, 29
inhuman treatment, 30 willful killing, 31 willfully causing great suffering or serious injury
to body or health, 32 enslavement, 33 and other crimes depending on the facts of the case.
Following this line of thinking, the general practice of the Prosecutor at the ICTY and
more recently at the ICTR has been to charge the crime of rape both as rape and as a
constituent act of another crime under the statute. The Women's Caucus was able to draw
upon these developments to push for codification of this treatment in the Rome Statute.
The Rome Statute represents a significant step to overcoming the discriminatory and
inadequate treatment of sexual violence crimes under international law. The Rome
Statute includes gender crimes as both war crimes and as crimes against humanity. Under
the war crimes section, the language makes it clear that the enumerated crimes are crimes
of the gravest nature. The trailer "or any other form of sexual violence also constituting a
grave breach of the Geneva Conventions" 34 which follows the enumerated sexual
violence crimes under article 8(2)(b)(xxii) signals that the enumerated crimes (rape,
sexual slavery, etc.) are themselves grave breaches of the Geneva Conventions. It is also
a signal that acts of sexual violence can be charged as sexual violence crimes or as the
other grave breaches crimes listed in article 8(2)(a) such as murder, torture, mutilation,
enslavement, etc. This characterization of sexual violence crimes is therefore important to
the ICC's capacity to indict sexual violence crimes in multiple ways.
Moreover, the Rome Statute recognizes a spectrum of gender crimes in addition to rape.
It was important to separately identify other sexual and gender crimes in order to
recognize the distinct characteristics of the different crimes. 35 This serves to
acknowledge the aggravating harm caused to the victim. For this reason, the Women's
Caucus fought to separately identify certain crimes, such as forced pregnancy, sexual
slavery, and gender-based persecution. 36
The Rome Statute includes the crime of forced pregnancy defined as "the unlawful
confinement, of a woman forcibly made pregnant, with the intent of affecting the ethnic
composition of any population or carrying out other grave violations of international law.
This definition shall not in any way be interpreted as affecting national laws relating to
pregnancy." 37 The Rome Statute is the first international treaty specifically listing the
crime of forced pregnancy. Forced pregnancy is not found in the Geneva Conventions or
the statutes of the two Ad Hoc Tribunals. However, the crime has been recognized as a
fundamental humanitarian and human rights violation in the Vienna Conference's
Programme of Action, the Beijing Conference's Platform for Action and by the UN
Commission on Human Rights. 38
The Rome Statute also codified for the first time the crime of sexual slavery. The
Women's Caucus lobbied to have sexual slavery listed in addition to enslavement and
enforced prostitution in order to recognize the particular elements of sexual slavery. The
term sexual slavery is preferable to enslavement and enforced prostitution because it
includes the sexual aspect of the crime of slavery, while also highlighting the coercive
element involved where women are forced to provide sexual services. At the same time,
the crime of "enforced prostitution" was retained in the Rome Statute to capture those
situations that lack slavery-like conditions. The Rome Statute also established a new
definition for enslavement. The definition of enslavement in the Rome Statute draws
from prior definitions of slavery, 39 with the important addition of trafficking in persons,
in particular women and children. As a result, the crime of trafficking in persons has been
brought within the jurisdiction of the Court.
Finally, the ground of gender was added to the crime of persecution under the crimes
against humanity section. Gender-based persecution, such as the sexual apartheid regime
in Afghanistan, involves the intentional and severe deprivation of fundamental rights by
reason of the victim's gender. 40 Prior formulations of the crime of persecution named
only political, racial or religious grounds, but not gender. 41 This suggested that genderbased persecution was less important or less prevalent than persecution on the other
enumerated grounds. The inclusion of the ground of gender in the Rome Statute was an
important step to ensuring that gender-based persecution would receive greater attention.
The ICC Negotiations. The first few drafts of the Rome Statute replicated the defects in
the traditional treatment of sexual violence crimes under international law. Specifically,
the ICC draft statutes in 1996 continued to link rape to outrages upon personal dignity
under war crimes, ignored crimes other than rape, and failed to recognize them as grave
breaches of the laws and customs of war. The December 1997 PrepCom was the first
opportunity to correct these problems and in particular to delink sexual violence crimes
from outrages upon personal dignity under war crimes. Because of Women's Caucus
lobbying prior to and during that PrepCom, the draft statute was changed to create a
separate category for rape, sexual slavery, enforced prostitution, enforced pregnancy,
enforced sterilization, and any other form of sexual violence. 42 This separate category
was included in the draft unbracketed, meaning that there was consensus among the
delegates to include the separate category. The sole dissenting voice was the Vatican,
which argued that forced pregnancy should be replaced with "forcible impregnation." 43
The candidates disregarded this suggestion and the separate category for gender crimes
under war crimes was established.
The issue of forced pregnancy was resurrected in Rome and became the most contentious
issue of all the gender provisions. In the aftermath of the rape and detention of Bosnian
women by soldiers to force them to bear Serb babies, the Women's Caucus believed that
it was important to explicitly recognize this crime. This crime inflicts incomparable harm
on the victims by occupying a woman's body and forcing her to bear her rapist's child. A
group of anti-choice organizations seized this issue to promote their agenda, falsely
arguing that including this crime in the statute would in itself support the right to
abortion. This group found sympathetic ears among a few delegations such as the Vatican
and Ireland, which worried that their policy prohibiting all abortions might come within
the scope of the crime of forced pregnancy. 44 The intention of those who wanted the
crime in the statute was not to criminalize the denial of abortion services (what is
considered an omission under criminal law). Rather, the crime of forced pregnancy was
meant to criminalize the acts of making and keeping a woman pregnant (a commission
under criminal law). For this reason, negotiations were conducted to arrive at a definition
of forced pregnancy clarifying the scope of the crime. While the Vatican initially
conducted negotiations with Women's Caucus members, it eventually refused to do so,
claiming that it would only negotiate with states. This was a deliberate strategy to
undercut efforts to appropriately integrate a gender perspective by dealing only with
government delegation where women are underrepresented. A few key delegates from
Australia, New Zealand, Bosnia-Herzegovina, Canada, and the US continued
negotiations with the Vatican and Ireland in order to keep forced pregnancy in the statute.
45
The Holy See tried to restrict the definition to acts committed for the purpose of ethnic
cleansing. These proposals were resisted because it would have excluded many other
forms of the crime. For example, during the Second World War, Jewish women were
forcibly made pregnant so that they and their fetuses could be used for medical
experiments. Only on the second to last day of the conference did the parties finally agree
to a definition which includes "carrying out other grave violations of international law" as
an alternative purpose for the crime's commission.
While some negotiating took place on the other gender crimes, such as enslavement and
gender-based prosecution, none of them was the subject of such intense opposition as
forced pregnancy. It is indeed important to note that there was no serious opposition to
including the other gender crimes, nor to the way they were characterized under the war
crimes and crimes against humanity sections. While the opposition to forced pregnancy
and the term "gender" was a sobering reminder of the unrelenting hostility of some states
to women's rights, it must not cloud our recognition of the significant support for
criminalizing acts of sexual violence among both governmental and non-governmental
participants of the Rome Diplomatic Conference.
III. INSTITUTING STRUCTURAL MECHANISMS TO ENSURE GENDER
BALANCE AND EXPERTISE
As women have increasingly begun to acquire political power, the international
community has acknowledged that their participation in international criminal fora is
fundamental, both because it values gender equity as a goal in itself and because women
are frequently more motivated than their male counterparts to ensure that gender-based
crimes such as rape are investigated and punished. An important achievement of the
Women's Caucus during the negotiations was ensuring that the composition of the Court
would include women in all of its organs and that women and men with specific expertise
in dealing with sexual and gender violence would be included on the Court's staff at all
levels.
The Rome Statute. The Rome Statute requires that "fair representation of female and
male judges" be "take[n] into account" in the selection process, as well as fair
representation of females and males in the selection of staff in all other organs of the
Court. 46 It also mandates that the selection of judges and other staff "take into account
the need to include" persons "with legal expertise on. . . violence against women or
children." 47 Moreover, the Prosecutor is required to "appoint advisers with legal
expertise on specific issues, including... sexual and gender violence." 48 Part 4 also
provides for the creation of a Victim and Witness Unit within the ICC's Registry to
"provide, in consultation with the Office of the Prosecutor, protective measures and
security arrangements, counseling and other appropriate assistance for witnesses,
victims... and others who are at risk on account of [their] testimony." The unit must
"include staff with expertise in trauma, including trauma related to crimes of sexual
violence." 49
Recent Experience Confirming the Need for Gender Balance and Expertise.
Although these principles of female representation and gender expertise had never before
been incorporated explicitly in a treaty forming an international body, the precedents for
the adoption of these principles were clear. Building on the Vienna Conference, 50 the
Beijing Conference urged governments and intergovernmental organizations to "aim for
gender balance when nominating or promoting candidates for judicial and other positions
in all relevant international bodies, such as the [ICTY], the [ICTR] and the International
Court of Justice, as well as other bodies related to peaceful settlement of disputes." 51 The
U.N. General Assembly has echoed these words in its call to all member states to
"commit themselves to gender balance" by "creating special mechanisms," including "by
presenting and promoting more women candidates" within both national and international
bodies and institutions. 52
The ICTY and ICTR are case studies on why it is so crucial to include women as well as
men with appropriate expertise in international bodies charged with investigating war and
conflict situations. The gradual shift toward taking rape and other sexual crimes seriously
and investigating them zealously can be traced to the participation of women in the ICTY
and ICTR as investigators, researchers, judges, legal advisors, and prosecutors. 53 In
1993, two of the eleven judges elected by the General Assembly to serve on the ICTY
were women 54 - an unprecedented - if still grossly inadequate - step. The two women
elected were the only women on the list of 23 candidates. Only after heated political
negotiations was a woman from Costa Rica, Elizabeth Odio-Benito, elected over far less
qualified male candidates from Latin America. 55
Indeed, Judge Navi Pillay, the only woman judge on the ICTR, was instrumental in
questioning witnesses in the Akayesu case and evoking testimony of gross sexual
violence, resulting in additional charges being added to the indictment. 56 The sexual
violence charged in the amended indictment eventually led to the defendant's conviction
for genocide due to those acts, the first time an international tribunal has found that rape
and sexual violence can constitute genocide. 57 Judge Pillay observed recently: "Who
interprets the law is at least as important as who makes the law, if not more so.... I cannot
stress how critical I consider it to be that women are represented and a gender perspective
integrated at all levels of the investigation, prosecution, defense, witness protection and
judiciary." 58
The tribunals are also two of the first examples of the international community applying
other key principles articulated in fora such as the Beijing Conference. In 1995, Chief
Prosecutor Richard Goldstone instituted the position of Legal Advisor for GenderRelated Crimes (the Gender Legal Advisor). The Gender Legal Advisor has been
instrumental in ensuring the investigation and prosecution of sexual violence crimes
despite the legal difficulties in doing so given their inadequate enumeration in the ICTY
and ICTR Statutes. 59
ICC Negotiations. The International Law Commission's 1994 draft of the Rome Statute
included provisions requiring judges and staff with expertise in criminal law and
international law; 60 however, it did not take account of the U.N.'s consensus that the
inclusion of women is fundamental in forming new international bodies nor did it focus
on the need for gender expertise. In 1996, a proposal of the United States and a joint
proposal from Denmark, Finland, Malawi, New Zealand, Norway, and Sweden, proposed
adding concepts of gender balance to the criteria for the selection of judges. 61 During the
March 1998 Preparatory Committee when the provisions related to composition and
administration were debated in detail, the Women's Caucus proposed language to ensure
that judges and other ICC staff included individuals with expertise in gender analysis. 62
The draft that emerged from the March PrepCom included bracketed language referring
to "gender balance" and "expertise on issues related to sexual and gender violence." 63
At the Rome Treaty Conference, the Women's Caucus faced a struggle to ensure the
retention of this language. Middle Eastern delegations, particularly Egypt, Iran, Oman,
Syria, and United Arab Emirates, vehemently opposed the inclusion of gender balance
and expertise on sexual and gender violence. Delegations fighting to include these
concepts had to accept compromise language that replaced "gender balance" with "fair
representation of men and women." 64 The failure to use the term "balance," wellaccepted in many U.N. documents, was a disappointing signal of continued resistance to
women's equality in international institutions. However, the compromise language may
have little practical impact, provided states take seriously the obligation to nominate and
elect women judges, prosecutors and high-level staff. In addition, "expertise on issues
related to sexual and gender violence, violence against children and other matters" was
replaced with "legal expertise on specific issues, including, but not limited to, violence
against women or children." 65 The loss of the language proposed by the Women's
Caucus specifying sexual and gender violence ironically excludes men, who also are
victims of sexual violence during wartime, but is still revolutionary for requiring the
expertise it does.
IV. SAFEGUARDING THE RIGHTS OF VICTIMS OF SEXUAL AND GENDER
VIOLENCE
In every legal system of the world, the investigation and prosecution of sexual and gender
violence has been undermined by discriminatory and patriarchal procedural and
evidentiary rules as well as law enforcement attitudes and practices. Underlying these
rules and practices is the prevailing cultural view that while it is correct for society to
formally outlaw rape and other crimes, governmental enforcement of these legal
prohibitions threatens the prevailing male-dominated social order and the "private" or
domestic sphere of relations between men and women. 66 This attitude has pervaded the
international arena as well, 67 and accounts for much of the reason international crimes of
violence against women have gone unsanctioned.
The Rome Statute. The Rome Statute is revolutionary because it codifies a mandate for
the Court to adopt specific investigative, procedural, and evidentiary mechanisms that are
essential to ensure gender justice. The Women's Caucus was able to lobby successfully
for inclusion of these provisions using precedents from the rules and decisions of the
ICTY and ICTR, as well as recent reforms made in some domestic legal systems. More
procedural and evidentiary safeguards related to sexual violence must still be drafted and
finalized when the Court's Rules of Procedure and Evidence (the "Rules") are negotiated
by ICC signatories at upcoming Preparatory Committee meetings scheduled for 1999. 68
However, the Rome Statute lays the necessary foundations in various provisions.
Article 68 of Part 6 concerns the protection of victims and witnesses and their
participation in proceedings. The Court is required to take appropriate measures,
including conducting proceedings in camera or allowing the presentation of evidence by
electronic means, to protect the safety, physical and psychological well-being, dignity
and privacy of victims and witnesses, taking into account such factors as age, gender,
health, and the nature of the crime, particularly where the crime involves sexual or gender
violence. The same provision permits the views and concerns of victims to be presented
and considered at appropriate stages of the proceedings. 69
The protections in Article 68 are echoed in other provisions. Part 5 of the statute,
concerning investigation and prosecution, requires the Prosecutor to "take appropriate
measures to ensure the effective investigation and prosecution of crimes," and to "respect
the interests and personal circumstances of victims and witnesses, including age, gender. .
. and health, and take into account the nature of the crimes, in particular where it involves
sexual violence, gender violence or violence against children." 70 Similarly, in Part 6,
concerning the trial, the Trial Chamber is required to ensure that the trial is conducted
showing "due regard for the protection of victims and witnesses." 71 The same provision
also requires the Trial Chamber prior to and during trial to "[p]rovide for the protection of
confidential information" and "the protection of the accused, witnesses and victims." 72
Article 69 of Part 6, concerning evidence, provides that the Court "may rule on the
relevance or admissibility of evidence, taking into account. . . the probative value of the
evidence and any prejudice that such evidence may cause. . . to a fair evaluation of the
testimony of a witness." 73 Finally, the statute includes a provision that is fundamental to
the Court's ability to ensure concrete justice to victims. It enables the Court to award
reparations to, or in respect of, victims, including restitution, compensation and
rehabilitation, upon request or on its own motion. 74
Precedents for the Inclusion of a Gender Perspective in the Court's Workings. Only
in the past few decades have some domestic legal systems begun to enact procedural and
evidentiary reforms to ensure that charges of rape, sexual violence and domestic violence
are appropriately treated by law enforcement and judicial officials in order to encourage
victims to come forward and to better ensure successful prosecution. 75 Following
extensive lobbying from women's rights organizations 76 supported by the two female
judges on the ICTY, 77 the judges of the ICTY and ICTR adopted important rules of
procedure and evidence to protect and counsel victims of sexual crimes and to ensure
proper handling of sexual crimes during trial.78 As noted by Gender Legal Advisor
Patricia Viseur Sellers, "the Rules [of Procedure and Evidence of the ICTY] offer the
strongest evidence of the [ICTY's] specific intent to investigate, prosecute, and adjudicate
sexual assaults." 79 For example, Rule 96, related to evidence in sexual assault cases, and
its counterpart in the ICTR are revolutionary in their approach to evidence of rape and
other sexual crimes. 80 Rule 96 provides that no corroboration of the victim's testimony is
required, that consent shall not be allowed as a defense except in limited circumstances,
and that no prior sexual conduct of the victim may be introduced. 81
ICC Negotiations. As was the case with every provision related to sexual and gender
violence, there was staunch opposition from some delegations, particularly Arab states,
regarding special measures of protection for sexual and gender violence. Delegates from
these states questioned the need to "single out" sexual and gender violence for any form
of special protection over other crimes. Using arguments put forth by the Women's
Caucus, a large number of other states countered that it was entirely appropriate to
include such protections. They argued that the long history of inadequate treatment of
sexual and gender violence committed during armed conflict, as well as the initial failures
to properly investigate and prosecute such violence in the former Yugoslavia and
Rwanda, demonstrated how essential special measures are. These provisions were also
embroiled in the larger debate about the use of the term "gender," as discussed in Section
I above. In the end, the vast majority of delegations understood the need to explicitly
include mechanisms to ensure that investigations and trials involving sexual and gender
crimes are appropriately handled and such mechanisms were included in the Statute.
Toward the end of the negotiations and in connection with Article 68 (protection of
victims and witnesses and their participation in the proceedings), some Arab states staged
a culturally revealing exercise in semantics whose purpose seemed to be to require the
Court to hold proceedings in camera or allow the presentation of evidence by electronic
or other means in cases involving sexual violence or children. Such an extreme exception
to the requirement of public hearings on grounds of "public morality" was rightly rejected
by other delegations, though a presumption favoring such non-public hearings was
retained. 82 While a strong provision favoring closed hearings for victims of sexual
violence at their request is essential to counteract the continuing culturally induced
feelings of humiliation and guilt that often cause such victims to refuse to testify, the
effort of the Middle Eastern states was aimed at keeping the "taboo" issue of sexual
violence "under wraps." Thus, a blanket secrecy requirement would not only undermine
the rights of the accused in some cases, but would perpetuate the negative stereotypes
associated with these crimes, undermining society's ongoing effort to punish those who
merit punishment - the perpetrators - and remove the veil of shamefulness from the
victim. In some cases, a victim may prefer to testify publicly, exposing the horror of what
she suffered as a step forward in her own healing process.
Conclusion
The integration of gender concerns into the Rome Statute is a concrete indication of how
far the international women's human rights movement has come. The inclusion of the
specific provisions discussed herein reflects a mainstreaming of women's rights into the
normative structures of international humanitarian law, a body of law that had previously
marginalized women's rights. In the years leading up to the Rome Treaty Conference, the
political will to address the heinous crimes perpetrated against women during armed
conflict had begun to build among the great majority of nations. The Women's Caucus
was able to exert pressure through its members' presence as NGO observers during the
treaty negotiations as well as through national-level supporters lobbying government
officials at home. Yet the fierce opposition by a few government and NGO delegations in
Rome to the Women's Caucus agenda - in the face of countless recent and historical
examples of women being systematically subjected to rape, forced pregnancy and other
forms of atrocious gender violence during wartime - suggests that future progress for
gender justice should not be taken for granted.
No treaty or court judgment can remedy the suffering of wartime victims of rape, forced
pregnancy, and other sexual violence, nor undo society's gender constructs that so cruelly
multiply their suffering to include shame and guilt. Yet the codification of a mandate to
end impunity for these acts is a significant step in the right direction. It was high time that
such crimes cease to be regarded as "inevitable by-products" of war and receive the
serious attention that they deserve.
As just two of the many supporters of the Women's Caucus, the authors would like to
recognize all of the women and men around the world that contributed to the success of
the Women's Caucus, including the government delegates who supported the goal of
gender justice. We thank Alison-Maria Bartolone for her assistance with this article.
Endnotes
1 Human Rights Watch, Human Rights Watch Global Report on Women's Human Rights (1995): 17-19.
2 The Women's Caucus may be contacted at iccwomen@igc.org.
3 Vienna Declaration and Programme of Action, U.N. Doc. A/CONF.157/24 (Vienna, 12 July 1993): Pt. I, 18 & 28, Pt. II, 37.
4 Beijing Declaration and Platform for Action, UN Doc. A/CONF.177/20 (15 September 1995): 142(b).
5 States that indicated their support during the Opening Plenary for including provisions in the statute to enable the Court to prosecute sexual
(and where indicated gender) violence crimes included: Australia, Austria, Bangladesh, Bosnia and Herzegovina, Botswana, Canada, Costa
Rica, Cyprus, Denmark, European Union (gender crimes), Finland, Georgia, Ghana, Israel (gender crimes), Korea (gender-related violence),
Kuwait, Lithuania, Luxembourg, Mexico, New Zealand, Norway, Philippines, Portugal, Russian Federation, Samoa, Slovenia (gender-related
crimes), South Africa (for SADC), Spain, Sweden (gender-related crimes), Trinidad and Tobago, Uganda, USA, and Zambia.
6 Other states that took the lead on specific issues included: Costa Rica, South Africa and Sweden.
7 The states that made statements opposing the term "gender" included: Qatar, Libya, Egypt, Venezuela, Guatemala (but flexible), United Arab
Emirates, Saudi Arabia, Kuwait, Syria, Turkey, Sudan, Bahrain, Iran, Yemen, Brunei, and Oman. The delegates who led the negotiations for
this group were from Syria and Qatar.
8 Implementation of the Outcome of the Fourth World Conference on Women, Report of the Secretary-General, UN Doc. A/51/322, (3
September 1996): 9.
9 Report of the Fourth World Conference on Women, UN Doc. A/CONF.177/20, (17 October 1995), "Annex IV: Statement by the President of
the Conference on the Commonly Understood Meaning of the Term 'Gender.'" Paragraphs 2 and 3 state: "Having considered the issue
thoroughly, the contact group noted that: (1) the word 'gender' had been commonly used and understood in its ordinary, generally accepted
usage in numerous other United Nations forums and conferences; (2) there was no indication that any new meaning or connotation of the term,
different from accepted prior usage, was intended in the Platform for Action. Accordingly, the contact group reaffirmed that the word 'gender'
as used in the Platform for Action was intended to be interpreted and understood as it was in ordinary, generally accepted usage."
10 The Rome Statute for the International Criminal Court, UN Doc. A/CONF.183/9, [hereinafter "Rome Statute"] (17 July 1998): art. 7(3).
11 Ibid., article 21(3).
12 Ibid., art. 8(2)(b)(xxii) for international armed conflict and art. 8(2)(d)(vi) for non-international armed conflict. Article 8(2)(b)(xxii) for
international armed conflict includes "any form of sexual violence also constituting a grave breach of the Geneva Conventions." Article
8(2)(vi) for non-international armed conflict includes "any other form of sexual violence also constituting a serious violation of article 3
common to the four Geneva Conventions."
13 Ibid., art. 7(1)(g).
14 Ibid., art. 7(1)(h).
15 Ibid., art. 7(2)(c).
16 "Convention with Respect to the Laws and Customs of War on Land," The Hague (Hague Convention II) (29 July 1899); "Convention
Respecting the Laws and Customs of War on Land," The Hague (Hague Convention IV) (18 October 1907); "Agreement for the Prosecution
and Punishment of Major War Criminals of the European Axis," London, 8 U.N.T.S. 279, Annex, Charter of the International Military
Tribunal, (Nuremberg Charter) (8 August 1945).
17 Allied Control Council Law No. 10 Punishment of Persons Guilty of War Crimes, Crimes against Humanity 3 Official Gazette of the
Control Council for Germany (Control Council Law No. 10) (20 December 1945).
18 Theodore Meron, "Rape as a Crime under International Humanitarian Law," 87 American Journal of International Law 424 (1993): 428.
19 See e.g. Article 147 of the "Convention Relative to the Protection of Civilian Persons in Time of War," (12 August 1949), [hereinafter
Fourth Geneva Convention], reprinted in United Nations, A Compilation of International Instruments [hereinafter UN Compilation of
International Instruments].
20 Ibid.: 799.
21 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed
Conflicts (12 Dec. 1977), UN Compilation of International Instruments [hereinafter Protocol I]: 862, arts. 75(2) and 76, and Protocol
Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (12
June 1977), UN Compilation of International Instruments [hereinafter Protocol II]: 930, art. 4(2)(e).
22 See Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian
Law Committed in the Territory of the former Yugoslavia since 1991, UN Doc. S/25704 (1993) [hereinafter ICTY Statute]; Statute of the
International Criminal Tribunal for Rwanda, S.C. Res. 955 [hereinafter ICTR Statute] (1994): arts. 2, 3 and 5; see Meron, supra note 18.
23 For the right to non-discrimination against women, see "Convention on the Elimination of All Forms of Discrimination against Women,"
UN Doc. A/RES/34/180 (3 September 1981); "International Covenant on Civil and Political Rights," (16 December 1966), 999 U.N.T.S. 171;
"Universal Declaration of Human Rights," U.N. G.A. Res. 217 (10 December 1948).
24 Women's Caucus for Gender Justice for an ICC, "Recommendations and Commentary for December 1997 PrepCom on the Establishment of
an International Criminal Court," WC.6.1, [hereinafter Women's Caucus paper], WC.6.1-4.
25 Kelly Dawn Askin, War Crimes against Women: Prosecution in International War Crimes Tribunals (Martinus Nijhoff Publishers, 1997):
163, 203.
26 These individuals include Admiral Toyoda, Foreign Minister Hirota, and General Yamashita. See W.H. Parks, "Command Responsibility
for War Crimes," 1 Military Law Review 69 (1993): 69-70, cited in Final Report of the United Nations Commission of Experts established
pursuant to Security Council Resolution 780, "Annex II: Rape and Sexual Assault: A Legal Study," UN Doc. S/1994/674/Add.2 (Vol.1) (28
December 1994) [hereinafter Report of UN Commission of Experts on Rape and Sexual Assault], 20; Prosecutor v. Jean Paul Akayesu, ICTR96-4-T, (2 September 1998) [hereinafter Akayesu judgment], 490; and Askin, supra note 25: 200-1; Meron, supra note 18: 425-6; See also
Susan Brownmiller, Against our Will: Men, Women and Rape (1975), cited in Anne Tierney Goldstein, Recognizing Forced Impregnation as a
War Crime under International Law (New York: Center for Reproductive Law and Policy, 1993): 12.
27 See Amicus Brief Respecting Amendment of the Indictment and Supplementation of the Evidence to Ensure the Prosecution of Rape and
Other Sexual Violence Within the Competence of the Tribunal, submitted by the Coalition for Women's Human Rights in Conflict Situations,
pursuant to Tribunal Rule 74, in the case of Prosecutor v. Jean-Paul Akayesu.
28 See Meron, supra note 18; Jennifer Green, Rhonda Copelon, Patrick Cotter and Beth Stephens, "Affecting the Rules for the Prosecution of
Rape and Other Gender-Based Violence Before the International Criminal Tribunal for the Former Yugoslavia: A Feminist Proposal and
Critique" 5 Hastings Women's Law Journal 171 (1994): 186-7; Anne Tierney Goldstein, supra note 26: 9; and Rhonda Copelon, "Surfacing
Gender: Re-Engraving Crimes against Women in Humanitarian Law," 5 Hastings Women's Law Journal 243 (1994).
29 Akayesu judgment, supra note 26: 597; Prosecutor v. Delalic et al., Celibici, Case No. IT-96-21, (16 November 1998): 480-96 [hereinafter
Celibici judgment]; See also Women's Caucus paper, supra note 24: WC.5.6-2-4.
30 In the case of Cyprus v. Turkey, the European Commission found that rape constituted "inhuman treatment" under article 3 of the
Convention and held that Turkey was responsible for the mass rape of Cypriot women in 1974. Cyprus v. Turkey 4 European Human Rights
Reports 482 (1976): 537; See UN Commission of Experts on Rape and Sexual Assault, supra note 26: 29.
31 Women's Caucus paper, supra note 24: WC.5.6-1.
32 Report of UN Commission of Experts on Rape and Sexual Assault, supra note 26: 15; Women's Caucus paper, supra note 24: WC.5.6-14
33 For example, in the indictment for Dragoljub Kunarac, the facts alleged that women were held in military headquarters and forced to
provide sexual services and domestic services. The indictment, which was upheld by the Court upon a defence motion, charged the defendant
with the crime of enslavement for these acts. Prosecutor v. Dragoljub Kunarac, Gagoviv and Others, Decision on Defence Preliminary Motion
on the Form of the Amended Indictment, IT-96-23 (21 October 1998).
34 Rome Statute, arts. 8(2)(b)(xxii) and (e)(vi).
35 Women's Caucus paper, supra note 24: WC.5.2.
36 Ibid.
37 Rome Statute, art. 7(2)(f).
38 "Vienna Declaration and Programme of Action," supra note 3: 18 and 38; "Beijing Declaration and Platform for Action," supra note 4: 114,
132, and 135; Commission on Human Rights Resolution 1998/52, "The Elimination of Violence against Women," (April 17, 1998), 4; Res.
1998/76 "Rights of the Child," (April 22, 1998), 13(a); Res. 1997/44, "The Elimination of Violence against Women" (11 April 1997): 4; Res.
1997/78, "Rights of the Child," (1997): 13(a); Res. 1996/49, "The Elimination of Violence against Women" (19 April 1996): 5; Res. 1995/85
"The Elimination of Violence against Women" (8 March 1995): 5.
39 Article 1 of the Slavery Convention, (25 September 1926), United Nations, A Compilation of International Instruments, Vol. 1 (First Part),
(1993): 201; Articles 1 and 6(2) of the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices
Similar to Slavery, ECOSOC Res. 608, (30 April 1956); Articles 2 and 25 of ILO Convention concerning Forced Labour. See also Article 4 of
the "Universal Declaration of Human Rights," supra note 23.
40 Rome Statute, arts. 7(1)(h) and 2(h).
41 ICTY Statute, art. 5; ICTR Statute, art. 3; Control Council Law No. 10 Punishment of Persons Guilty of War Crimes, Crimes Against Peace
and Humanity (20 December 1945) 3 Official Gazette of the Control Council for Germany 50; "Charter of the International Military Tribunal"
in Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, London, 8 August 1945, 82 UNTS 279.
42 Decisions taken by the Preparatory Committee at its December 1997 Session, 20C(B)(p bis): 268, M. Cherif Bassiouni, ed., International
Criminal Court: Compilation of United Nations Documents and Draft ICC Statute before the Diplomatic Conference (1998).
43 This proposal was formally tabled by the Vatican at the March-April 1998 PrepCom session. See U.N. Doc. 249/1998/DP.13 (1 April 1998).
44 Countries that made statements opposing or expressing concern regarding the inclusion of the crime of forced pregnancy included: Bahrain,
Paraguay, United Arab Emirates, Saudi Arabia, Holy See, Kuwait, Egypt, Libya, Ecuador, Venezuela, Nicaragua, Malta, Russia, Oman,
Ireland, Poland, Philippines, Colombia, Costa Rica, Iran, Iraq, and San Marino.
45 The countries that expressed support for recognizing forced pregnancy included: Canada, US, Australia, Netherlands, Azerbaijan, Slovenia,
Croatia, Mexico, Sudan, Estonia, Burundi, Rwanda, Turkey, Nigeria, Austria, India, and Bosnia-Herzegovina.
46 Rome Statute, arts. 36(8)(a)(iii) & 44 (2).
47 Ibid., arts. 36(8)(b) & 44(2).
48 Ibid., art. 42(9).
49 Ibid., art. 43(6). See also art. 68 (providing that the Victims and Witnesses Unit may advise the Prosecutor and the Court on appropriate
protective measures, security arrangements, counseling and assistance).
50 "Vienna Declaration and Programme of Action," supra note 3: 37.
51 "Beijing Declaration and Platform for Action," supra note 4: 142 (b), (c).
52 G.A. Res. 51/69, adopted 12 Dec. 1996. In 1997, the General Assembly reaffirmed the goal of 50/50 gender distribution by the year 2000 in
all categories of posts within the United Nations system. G.A. Res. 52/96, adopted 12 Dec. 1997. Pursuant to that resolution, the SecretaryGeneral issued a report on progress to date in achieving gender equality in the Secretariat and reaffirming his commitment to achieve gender
balance. See also "Improvement of the Status of Women in the Secretariat," Report of the Secretary-General, A/53/376 (14 Sept. 1998).
53 Askin, supra note 25: 302.
54 Ibid.
55 See Green, et. al., "Affecting the Rules for the Prosecution of Rape," supra note 28: 171, 176-77 (1994).
56 Women's Caucus for Gender Justice in the International Criminal Court, Recommendations and Commentary for the March 1998 PrepCom:
Part II (Procedures) 4 & 16 (1998). As a result of a different investigatory approach and concerted attention to sexual violence crimes, the
ICTR Prosecutor presented testimony, previously claimed to be impossible, of five victims and witnesses. Ibid: 16.
57 See Akayesu judgment, supra note 26: Sec. 7.8.
58 United Nations, Division for the Advancement of Women and Centre for Refugee Studies, York University, Canada, Gender-Based
Persecution: Report of the Expert Group Meeting, EGM/GBP/1997/Report, (Toronto, Canada, 9-12 November 1997): 33.
59 See Askin, supra note 25; see also Patricia Viseur Sellers and Kaoru Ozuizumi, "Prosecuting International Crimes: An Inside View:
International Prosecution of Sexual Assaults," 7 Transnt'l L. & Contp. Probs (1997): 45, 56-68.
60 See Report of the International Law Commission on its Forty-Sixth Session, Draft Statute for an International Criminal Court (2 May-22
July 1994), G.A., 49th Sess., Supp. No. 10, A/49/10, 1994, art. 6, reprinted in International Criminal Court Compilation, supra note 42.
61 Report of the Preparatory Committee on the Establishment of an International Criminal Court: Volume II, (Compilation of Proposals), G.A.
51st Sess., Supp. No. 22, A/51/22, (1996, reprinted in International Criminal Court Compilation, supra note 42.
62 Women's Caucus for Gender Justice in the ICC, Gender Justice and the ICC 34 (Prepared for the UN Diplomatic Conference on the
Establishment of an ICC, June 1998).
63 Report of the Preparatory Committee on the Establishment of an International Criminal Court, Draft Statute and Draft Final Act,
A/Conf.183/2/Add.1 (1998): art. 37(8)(e), reprinted in International Criminal Court Compilation, supra note 42.
64 In addition to the delegations named above, Kenya, Russia, and Nigeria also opposed the concept. The compromise language of "fair
representation" was proposed by Slovakia, which was eventually accepted during informal consultations.
65 Rome Statute, art. 36(8)(b). With respect to gender expertise, Kenya, Guatemala, Kuwait, Indonesia, and Iraq were opposed to its inclusion.
66 See, generally, Elizabeth M. Schneider, The Violence of Privacy, 23 Connecticut Law Review(1991): 971, 973; Hilary Charlesworth,
Christine Chinkin and Shelley Wright, Feminist Approaches to International Law, 85 American Journal of International Law(1991): 613, 625628; Amy E. Ray, The Shame of It: Gender-based Terrorism in the Former Yugoslavia and the Failure of International Human Rights Law to
Comprehend the Injuries, 46 American University Law Review (1997): 793, 830-835 (relating the effects of this dichotomy to the sexual
crimes committed in the Yugoslav conflict).
67 See Celina Romany, State Responsibility Goes Private: A Feminist Critique of the Public/Private Distinction in International Human Rights
Law in Human Rights of Women (Rebecca Cook, ed., 1994): 85; Andrew Byrnes, "Women, Feminism and Women's International Human
Rights Law - Methodological Myopia, Fundamental Flaws or Meaningful Marginalisation?" 12 Austl. Y.B. Int'l L. (1992): 205, 225-231;
Evelyn Mary Aswad, "Torture by Means of Rape" 84 Georgetown Law Journal (1996): 1913, 1919-20.
68 During the treaty negotiations, many states expressed the view that the inclusion of, for example, a provision specifically dealing with
excluding gender discriminatory evidence should be left for the Rules. See Report of the Preparatory Committee on the Establishment of an
International Criminal Court, Draft Statute and Draft Final Act, supra note 62, Part 6, fn. 15. In general, Article 69(4) of the Rome Statute
establishes that the Court must evaluate the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to
fair evaluation of a witness. In addition, Rome Statute article 21(3) states that the applicable law employed by the Court cannot be applied or
interpreted in a gender discriminatory way.
69 Rome Statute, art. 68(1),(2)&(3).
70 Ibid., art. 54(1)(b).
71 Ibid., art. 64(2).
72 Ibid., art. 64(6)(c)&(e).
73 Ibid., art. 69(4).
74 Ibid., art. 75.
75 These reforms have included one or more of the following: (i) permitting non-disclosure of the victim's identity in certain circumstances; (ii)
allowing portions of a trial to be conducted in camera; (iii) abolishing the evidentiary requirement of multiple corroborating witnesses or
"cautionary rules" regarding the adequacy of the women's uncorroborated testimony, (iv) narrowing the scope of the defense of "consent" by
the victim, including by disallowing the introduction of evidence of her past sexual history to infer consent, and (v) doing away with
investigative techniques and presumptions disfavoring intrusion in "private" matters or requiring physical evidence of violence or evidence of a
"struggle."
76 Green, et al., "Affecting the Rules for the Prosecution of Rape," supra note 28.
77 Askin, supra note 25: 303.
78 Provisions with particular relevance to sexual violence prosecutions are ICTY Rule 34 (concerning the Victims and Witnesses Unit, special
attention to victims and witnesses and States' need for a gender-balanced staff); Rule 75 (permitting non-disclosure for an indictment); and
Rule 96 (related to evidence on sexual assault cases). See Sellers, supra note 58: 50-53.
79 Sellers, supra note 58: 50.
80 Askin, supra note 25: 303-305. Askin discusses how the absence of Rule 96 could result in defense counsel demoralizing and devastating a
witness on the stand due to her failure to "resist" or say "no" to rape after repeated rapes and related physical and mental abuse at the hands of
her rapists.
81 See International Criminal Tribunal for the Former Yugoslavia, Latest Rules of Procedure and Evidence (Rev. 13, 9 & 10 July 1998), Rule
96 (visited February 4, 1999) < http://www.un.org/icty/basic/rpe/rev13e.htm;> and International Criminal Tribunal for Rwanda, Rule 96
(visited February 4, 1999) . See Sellers, supra note 58: 51-53.
82 Article 68 of the Rome Statute provides that "[M]easures shall be implemented in the case of a victim of sexual violence or a child who is a
victim or witness, unless otherwise ordered by the Court, having regard to all the circumstances, particularly the views of the victim or
witness."