Q&A with Expert on Criminal Courts and Prosecuting Gender-Based Violence Perpetrators, Bringing Victims in for their Day in Court
As the United Nations General Assembly convenes this week with an emphasis on the Rule of Law, Maxine Marcus, an expert on criminal investigations and prosecutions of gender-based crimes talks to UN Women on how far we have come in the process and where we need to go.
As someone with extensive experience prosecuting gender-based crimes, how have you seen the work of international criminal courts change or improve the landscape of justice for women?
Viewing developments over the past two decades, there has been a dramatic positive shift toward justice for gender-based crimes. A mere 20 years ago there was no possibility of justice for survivors of these heinous crimes. We have come a long way since then. International courts, including the ad hoc tribunals, the hybrid tribunals, and now the ICC, have managed to bring justice to hundreds of survivors of gender-based crimes.
As justice is increasingly within the reach of many survivors, the word spreads; other survivors are also then more confident in coming forward to testify, and increasingly survivors' determined courageous voices are being heard. As a result, perpetrators of gender-based crimes are being caught and punished – they can no longer rest in the confidence that they will never be held accountable for their crimes.
In recent years through the experience of bringing justice to the survivors, the international courts have also developed and implemented mechanisms to protect and empower women through their participation in the justice process – and this is our ultimate aim as prosecutors of gender-based international crimes: Empowerment through participation in the justice process.
How do you feel the work of the ICTY raised the bar in this area?
ICTY is the “mother ship” of international criminal justice post World War II and has pioneered the effective prosecution of sexual and gender-based violence crimes committed during armed conflict. Some of ICTY's first cases were centrally focused upon bringing justice for gender-based crimes committed against both women and men. The first international criminal jurisprudence – and in particular the first gender jurisprudence – emerged from the ICTY's early cases. ICTY has built on that legacy and included charges relating to sexual and gender-based violence in scores of indictments, some of which have already resulted in convictions for these crimes, while other cases including gender-based crimes are still in progress.
These cases have resulted in convictions of high-level leaders for crimes of gender-based violence committed by subordinates or co-perpetrators, which has set the precedent for accountability for these crimes to attach up to the highest level accused. Building on the precedents set by ICTY and developing them further, other international courts have continued the path forged by the ICTY and have carried out successful prosecutions of individuals for sexual and gender-based violence crimes. ICTY has also set the precedent for effective mechanisms to provide security (both physical and psychological) and support to survivor witnesses, both in and out of the courtroom, before, during and after their testimony.
These structures have also served as models for other international courts. Finally but most critically, ICTY has worked to ensure that the impact of gender justice has spread through the communities of the former Yugoslavia so that the affected community will benefit from the knowledge that justice has been done. This has been carried out through outreach to these communities which has served to bring palpable justice to survivors of gender-based crimes even where they themselves have not directly participated in the justice process. Other courts have similarly engaged in outreach efforts modeled on the precedent of the ICTY.
As an advisor on gender-based crimes, which areas have you worked to improve in terms of procedure and women's access to justice – for example in Guinea? Why has expertise in this area been important?
International courts are not the only international actors involved in bringing justice for survivors of gender-based crimes. There are many critical players in this mission, who are gathering evidence of crimes of sexual and gender-based violence with a view toward ultimately bringing justice, but who are initially operating outside the scope of the judicial institution. Among those involved in bringing justice to survivors are UN Commissions of Inquiry, other UN Agencies, and human rights NGOs. UN Commissions of Inquiry in particular are faced with the task of gathering evidence for eventual use in a judicial context, and are tasked as well with investigating not only human rights violations committed by a state, but also investigating international criminal law violations.
Recently their mandates have also included identification of alleged individual perpetrators of international crimes, including sexual and gender-based violence crimes. As such, the inclusion in these investigative teams of experts in the investigation and prosecution of gender-based international crimes is critical to ensure that the survivor witnesses are not harmed in any way through the investigative process and to ensure that the evidence is gathered in such a way so as to render it useful in a judicial process.
UN Women (and its predecessor UNIFEM) has set the example of the significance of providing such experts in investigation and prosecution of gender-based crimes to Commissions of Inquiry. In cooperation with the Justice Rapid Response, which has trained and rostered international experts including experts in investigation and prosecution of international crimes, UN Women is playing a central role in ensuring women's access to justice.
As the first UN Women seconded gender expert, seconded to the UN Commission of Inquiry in Guinea, I was able to bring to an already superb team additional expertise in the specifics of prosecution and investigation of gender-based violence as an international criminal law violation. This role complemented the team of talented human rights investigators and paved the path toward an effective investigation and resulting report, which essentially is a dossier prepared for use in a judicial process. It is my hope that the bravery of the survivors whose experiences we documented will ultimately carry them to court – either domestically or internationally – where justice can truly be served.
Which shortfalls have been most effectively addressed, and have you been able to appreciate the impact?
Early efforts to bring justice to survivors of gender-based crimes often fell short due to a lack of expertise of those speaking to the witnesses, lack of understanding of how to facilitate their access to justice, and lack of protection mechanisms. All these areas have been greatly improved by the international courts, as explained by the survivors themselves. The impact has been palpable – many survivor witnesses have indeed stated that they were empowered through their participation in the justice process, and that their participation was a turning point in their lives.
What are some of the greatest challenges that remain for women in accessing justice and benefitting fully and equally from the rule of law, and what do you think is most needed in institutional response – nationally and internationally?
In spite of phenomenal achievements, gender justice is still elusive for most survivor witnesses. International courts have mandates to prosecute only those most responsible on a large scale, and thus high-level officials responsible for international criminal law violations are facing justice, but all too often the direct perpetrators of the crimes of gender-based violence escape with impunity. Even internationally, in reality, only very few survivors of gender-based crime actually have the opportunity for their “day in court.” National judicial institutions need international support at all phases of the judicial process, from the investigation through the prosecution, in order to ensure that women have access justice.
This must necessarily include security aspects which present a central obstacle to women's access to justice. In order to continue to support both international and national institutions, additional and specialized expert training is necessary to build the community of experts in investigation and prosecution of crimes of sexual and gender-based violence. These experts – once there are sufficient numbers of them – can then be deployed systematically to both international and national teams engaged in efforts to ensure access to justice for survivors of gender-based crimes.