[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 well-established 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.
Ashcroft Strikes Out
