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 gender-based 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.
Ashcroft Strikes Out
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