Background Summary: Gender in International Judicial Systems

Grace Edquist- Jennings
Monday, March 12, 2012 - 20:00
Initiative Type: 

Background Summary: Gender in International Judicial Systems

This article is not written as a comprehensive summary of gender and international law but a short overview of recent developments linked to the international law, the International Criminal Court (ICC) and the Extraordinary Chambers in the Courts of Cambodia (ECCC). The article discusses cases related to Côte d'Ivoire, Kenya, Democratic Republic of Congo (DRC), among others.

Today, ten years after the creation of the Rome Treaty-governed International Criminal Court (ICC), we continue to witness significant developments in the international prosecution of gender-based crimes, in domestic courts as well as in ad hoc and hybrid tribunals. However, access to justice remains elusive for women in many conflict situations, with gender crimes remaining particularly vulnerable to both omission from filings and ultimate failure to reach trial phase - a finding that was articulated in December, with the release of the ICC's 2011 Gender Report Card.

The PeaceWomen Project looks to the appointment of Ms. Fatou Bensouda, the first female chief prosecutor of the International Criminal Court, as an opportunity for the ICC to further the women, peace and security agenda through better practices for including survivors of gender crimes and preserving their testimonies and related evidence.

Developments and Current Trials: Gender-Based Crimes in the ICC

Since 2011, the ICC has demonstrated some commitment to supporting and implementing the women, peace and security agenda. In November 2011, the ex-president of Cote d'Ivoire, Laurent Gbagbo, became the first head of state to be taken into the Court's custody. He will be tried for crimes against humanity, including the rape of women and men, following the violence after the 2010 presidential elections in Cote d'Ivoire. Pro-Gbagbo forces reportedly killed and raped hundreds of perceived Allesandre Ouattara supporters.
In response to the violence, outgoing chief ICC prosecutor, Luis Moreno-Ocampo, announced: “Mr Gbagbo is the first to be brought to account, there is more to come.” Investigations into the post-election violence continue.

Post-election violence similarly lies at the heart of the two Kenyan cases before the ICC. On January 23, 2012, the Court confirmed charges for crimes against humanity, including rape, against Head of Civil Service, Francis Kirimi Muthaura, and Deputy Prime Minister ,Uhuru Muigai Kenyatta. Hundreds of rapes occurred in six of Kenya's eight provinces in the weeks of unrest following the 2007 poll- as well as 1,100 killings and 600,000 forcible displacement, according to Mr. Moreno-Ocampo.

The Court continues to address gender-based violence in the DRC in its joint trial of Germain Katanga, the alleged commander of the Force de résistance patriotique en Ituri (FRPI), and Mathieu Ngudjolo Chui, the alleged former leader of the Front des nationalistes et intégrationnistes (FNI).
They are being charged with committing war crimes and crimes against humanity including both sexual slavery and rape. Their trial has been running since 2009. Jean-Pierre Bemba Gombo, former Vice President of the DRC and alleged leader of the Movement for the Liberation of Congo, is also charged for crimes against humanity and war crimes including rape in an ongoing trial by the Court.

Shortcomings: Gender-Based Crimes in the ICC

Despite the Court's critical attention to conflict-related rape, the ICC's Gender Report Card ( for 2011, released in December by the Women's Initiatives for Gender Justice, gives a mixed review of the Court's performance regarding gender crimes.

The Report criticizes the Office of the Prosecutor for failing to consistently and fully investigate gender-related crimes. It cites shortcomings at the investigation phase, insufficient evidence and incorrect understandings of gender-related definitions. In some requests for arrest warrants or summons, gender crimes have been wholly omitted. Recommendations in the report include a review by the Office of the Prosecutor of its
its investigation and presentation-of-evidence strategies in gender-based crime scenarios.

This recommendation falls on the heels of the Courts January 2012 decision to drop charges for crimes against humanity, including rape, against Mohammed Hussein Ali in the Mathaura, Kenyatta and Ali case, citing a lack of evidence. The Prosecution alleged that Mohammed Hussein Ali, as former Police Chief, was criminally responsible for the inaction of the Kenya Police that enabled and strengthened attacks against perceived Orange Democratic Movement supporters. In January 2012, Court prosecutor Morena-Ocampo announced that he will not appeal the decision regarding Mohammed Huseein Ali.

Again citing a lack of evidence, judges turned down Mr. Moreno-Ocampo's request for rape charges relating to the towns of Kibera and Naivasha in March 2012. Furthermore, rape was left off the charge-sheet in another Kenyan cases before the Court against suspects William Ruto, Joshua arap Sang' and Henry Kosgey. Witness intimidation and deliberate obstruction by the Kenyan government was cited as the reason.

A Pre-Trial Chamber I's December decision to drop all charges including rape as a war crime against Rwandan rebel leader Callixte Mbarushimana arroused discontent among DRC survivor and campaigner groups.
The Coalition for the International Criminal Court has admitted that there were problems with the participation of victims in this case. For example the decision to allow 130 victims to participate in the confirmation of charges was made only one week before the hearing was initially scheduled to begin. This resulted in the omission of hundreds of other survivors who had asked permission to participate. Mbarushimana, who has political expatriate status in France, is the first detained suspect to be released by the Court. He is now under investigation by the French Government due to his suspected role in the 1994 Rwandan genocide.

Adding to concerns about the prosecution of gender crimes in the DRC, the Prosecution failed to include charges relating to gender-based crimes on the summons of Thomas Lubanga Dyilo and Bosco Ntaganda, despite documented accounts that Dyilo' s rebel group, Union de Patriotes Congolais, allegedly committed such crimes.

Shortcomings: the Extraordinary Chambers in the Courts of Cambodia ECCC

Criticisms of the ECCC (also called the Khmer Rouge Tribunal) echo the concerns articulated in the Gender Report Card. In response to the Court's broad exclusion of sexual violence charges, the Cambodian Defenders Project held a two-day “Women's Hearing” in December 2011 in Phnom Penh.

At the informal hearing, female survivors and witnesses of sexual violence described their experiences of sexual violence as part of the atrocities committed by the Khmer Rouge regime in the late 1970s. A concluding statement from the hearing called upon the ECCC to hold senior Khmer Rouge leaders to account for the gender-based violence.

The statement identified a number of patterns of sexual violence carried out under the regime, including systematic rape prior to execution, gang rape, sexual mutilation, and sexual violence to obtain confessions, coerce or torture. The statement also noted that some women were made to exchange sex for medicine or food under the regime. I

One of the statements demands called for the full implementation of laws and an end impunity for violence against women. Some of the perpetrators of this violence remain alive today, and at least one holds a position of power within their province. Other demands include the instigation of research and education efforts, as well as the implementation non-judicial mechanisms for transitional justice such as reconciliation, memorials, and the inclusion of gender-sensitive reparations like healthcare, education, and training provisions.

Nancy Bright, chief of staff to the UN's special representative on sexual violence in conflict, commented: “The brutalities of the Khmer Rouge regime may have happened a long time ago… but the legacy of those crimes lives on”.

Despite relatively widespread coverage of the event- and attendance by representatives from UN agencies, civil society, and international and local non-government organizations- the ECCC has yet to meet survivor demands articulated in the Panel Statement. To date, only forced marriages have been included in the indictments at the international/domestic hybrid court, founded in 2001.

Moving Forward

There have been developments in terms of the international judicial systems' advancement on gender-related issues. However, courts continually fail to prioritize sexual violence charges and maintain an inconsistent track record of prosecuting gender crimes, as evidenced by cases in Kenya, the DRC and Cambodia.
This failure falls upon the continued perpetration of rape and sexual violence in conflict. Almost twenty years since the first international judicial recognition of sexual violence as a weapon of war, it is time for widespread and consistent prosecution of rape and sexual abuse of women in conflict-related situations, and an end to the impunity that so many perpetrators continue to enjoy.

Four months ago, Gambian Fatou Bensouda won a landmark election as both the first woman and the first African chief prosecutor of the International Criminal Court. Her appointment has received support from the African Union and civil society.

The PeaceWomen Project team hope that with the leadership of Ms. Fatou Bensouda as ICC chief prosecutor, the coming months will bring further advancements within not only the ICC and the ECCC, but the international judicial system as a whole.