Worldwide
What Is the International Criminal Court?
The International Criminal Court will serve as a permanent tribunal with the power to prosecute genocide, war crimes, crimes against humanity, as well as, eventually, the crime of aggression. The ICC will only be able to move forward on a prosecution when a state with jurisdiction over a defendant is either unwilling or unable to prosecute him or her in its courts. Moreover, either the state of nationality of the accused or the state where the crimes took place must ratify the treaty prior to the Court acting on a case. Provisions were made for an independent prosecutor, reparations for victims of core crimes, and limits on the ability of the U.N. Security Council to withhold cases from the court. The ICC is separate from the International Court of Justice (ICJ), which deals with disputes between nations, not individuals. Based in The Hague, the ICC will most likely begin functioning after the year 2000, following ratification by 60 nations.
Women and the ICC
"After my arrival in the concentration camp, they...raped me...in front of all the rest of the women...who were yelling and defending me, but they were beaten. The [soldiers] said ‘you will give birth to a Serbian child, we're doing that out of revenge.'... [O]ut of the 24 women, 12 of us were raped many times over.... Now I am four-and-a-half-months pregnant."
- Anonymous, Bosnia
Rape, sexual slavery, and forced pregnancy have been used as weapons of war for centuries. Like other war-related brutality, these forms of violence against women are often sanctioned and frequently ordered by the military, police, or other governmental actors. Since rape has historically been seen as part of the "spoils of war," conquering armies have long considered it their right to rape "enemy" women.
In 1948 the international community accepted women's rights as a fundamental precept of human rights in the landmark Universal Declaration of Human Rights. But women have struggled, in the 50 years since, to bring this notion into laws and practices around the world. Indeed, when the United Nations held a conference in Rome this July to finalize a statute leading to the formation of an International Criminal Court (ICC), many were concerned that women's issues not be neglected at a forum intended to codify the most serious violations of international humanitarian law. Women's rights groups from all regions of the world stood side-by-side to ensure that a gender perspective was incorporated into the treaty. And their efforts were rewarded: Wide consensus was reached to define rape as a war crime and a crime against humanity that should be prosecuted by this newly formed international tribunal.
Ensuring accountability for women's rights was not without controversy. Katherine Hall Martinez, the Center for Reproductive Rights representative to the Rome Treaty Conference and an active member of the Women's Caucus for Gender Justice in the ICC, calls the resulting statute a "sobering triumph" for women. "Our experience in Rome was a depressing reminder that there are formidable forces of religious and political fundamentalism throughout the world still intent on blocking any move to muster international law to redress violations of women's rights."
Negotiations heated up when the Vatican and its allies sought to strike the term "forced pregnancy" from the treaty, fearing that the words could be interpreted broadly as a means of challenging anti-abortion laws in many countries. The Vatican had significant lobbying assistance from anti-choice group members, whose principal stated purpose in attending the treaty conference was to oppose the inclusion of the term in the final treaty. In recent years, forced pregnancy, the crime of raping or sexually abusing women so as to make them pregnant and/or confining or coercing pregnant women because of their pregnancy, has been practiced in the Balkans and Rwanda. In an effort to forge a compromise, the Women's Caucus sought a meeting with the delegation of the Holy See, but was rebuffed. Fortunately, the Caucus and other involved groups were successful in persuading delegates to include forced pregnancy though several reactionary Catholic and Islamic governments lined up behind the Vatican to insist on the insertion of a narrow definition.
Despite the widely accepted usage of the terms "gender violence," "gender balance," and "gender persecution" in the U.N. system, the Women's Caucus met systematic opposition to inclusion of those terms wherever they appeared in the draft treaty. Fundamentalist Christian and Arab states sided with a number of nongovernmental organizations to oppose the term. Opposition NGOs expressed their view that gender justice was an "ornamental issue" through which the Caucus sought to exploit victims of war crimes and crimes against humanity to advance their agenda and "reconstruct[ ] world society by targeting religious and cultural traditions." Ultimately, the word "gender" was left intact in most places, but in a concession to the religious factions, "gender" in the ICC Statute will be defined more restrictively than in previous U.N. documents. It will read: "two sexes, male and female, within the context of society."
"It was an amazing experience," says Hall Martinez. "We were working to change history, namely the world's ongoing failure to take sexual and gender crimes in armed conflict seriously. We've made it much harder - hopefully impossible - for impunity for such crimes to continue."
- Barbara Becker
The Four Core Crimes
Genocide
Actions committed with the intent to destroy a national, ethnic, racial, or religious group such as by killing or preventing births.
War crimes
Grave breaches of the Geneva Conventions, such as torture or inhuman treatment, and other serious violations of the laws and customs applicable in international armed conflict, including rape and other forms of sexual violence.
Crimes against Humanity
Actions committed as part of a widespread or systematic attack directed against any civilian population, including rape and other forms of sexual violence, enslavement, including trafficking of women, and persecution on gender grounds.
Crimes of Aggression
Because the crime of aggression has not yet been defined, the ICC will not have jurisdiction over it unless and until its definition is agreed upon. The crime involves an individual who initiates or carries out an armed attack against another state in violation of the U.N. Charter.
The ICC Statute
The new statute contains several key victories for women:
A long overdue codification of rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and other grave forms of sexual violence as both war crimes and crimes against humanity. Rape will be charged as a war crime on par with torture.
The definition of crimes against humanity - including persecution against any identifiable group on grounds including gender.
The term "enslavement," defined as the exercise of any power attaching to the right of ownership over a person, including trafficking in women and children.
A requirement that "fair representation" of female and male judges be taken into account in the judicial selection process, as well as fair representation in the selection of prosecutorial staff and those in other departments.
A provision that legal expertise on violence against women or children must be taken into account in the selection of staff. Also, the Prosecutor will be required to appoint advisers with legal expertise on sexual and gender violence.
A provision for a Victim and Witness Unit within the Court's Registry to provide protective measures, security arrangements, counseling, and other appropriate assistance for witnesses, victims, and others at risk. The Unit must include staff with expertise in trauma related to sexual violence.
A provision for reparation and restitution
to victims.
