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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, ICTR-96-4-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 Secretary-General 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, 625-628; 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."

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