International Justice
International Justice Day
Background on the ICC and its potential to fight violence against women
In July 1998, the international community adopted the Rome Statute of the International Criminal Court (Rome Statute), creating the world’s first permanent court capable of trying individuals accused of genocide, crimes against humanity and war crimes. The Rome Statute provides that the ICC can investigate and prosecute individuals only when national courts are unable or unwilling genuinely to do so. In this way, the ICC serves as a safety net to ensure that the most serious crimes under international law will not go unpunished.
Since the ICC will only be able to investigate and prosecute a small number of cases of those who bear the greatest responsibility for the crimes committed in any given situation, and only in circumstances where national courts are unable or unwilling to prosecute, it is intended to act as a complement to, and a catalyst for, national courts to undertake investigations. The Rome Statute can serve as a model for reforming national laws so that such investigations and prosecutions can be conducted in a manner consistent with the highest standards of fairness and justice.
The ICC’s jurisdiction began on July 1, 2002, following the 60th ratification of the Rome Statute; the Court is now fully functional in The Hague. In 2004, the ICC Prosecutor began two investigations – in the Democratic Republic of Congo (DRC) and Uganda. Both conflicts involve widespread crimes of violence against women, and the ICC’s Prosecutor has indicated that he is taking these crimes very seriously. In June 2005, following a referral by the United Nations Security Council, the ICC Prosecutor began an investigation of crimes against humanity and war crimes in the Darfur region of Sudan. As is the case in the conflicts in the DRC and Uganda, crimes of violence against women are widespread in Sudan. It is expected that the ICC will commence its first trials some time in 2006, at the earliest.
Thanks in large part to the efforts of women’s organizations from around the world, the International Criminal Court includes many elements that will help to combat impunity for the worst crimes of violence against women and can serve as the model for gender-sensitive reform of national laws and procedures. These include:
- - Recognition of a broad spectrum of sexual and gender violence as crimes against humanity and war crimes. These include rape, enforced prostitution, forced pregnancy, forced sterilization, sexual slavery, trafficking, and gender-based persecution.
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- Progressive definitions of these crimes. For example, the ICC definition of rape is gender-neutral, includes penetration by objects and other body parts, and focuses on the acts of the perpetrator rather than the victim by examining the ‘coercive circumstances’ of the crime.
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- Rules of procedure and evidence that seek to prohibit gender-biased assumptions often made by national courts. For example, silence or lack of resistance cannot be taken to imply consent in a case of sexual violence. Consent also cannot be inferred from words or conduct of the victim where there was force, threat of force or a coercive environment. Evidence of prior or subsequent sexual conduct of the victim is not admissible, and cannot be used to determine credibility, character or predisposition to sexual availability.
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- The needs of victims and witnesses must be taken into account by all parts of the Court. Victims have the right to participate in the proceedings through a separate legal representative, will be provided with counseling and other support, and may be entitled to reparations for the harm suffered.
- - ICC judges are required to reflect a fair balance of female and male judges and are required to have expertise in areas including crimes of sexual violence. This gender balance is also a requirement for male and female staff of the ICC, who are also required, where relevant, to have particular expertise in dealing with victims, including those of crimes of sexual violence. Currently, seven of the 18 ICC judges are women, a much higher proportion than in any other international court or tribunal.