KEYNOTE ADDRESS PROTECTION OF THE HEALTH OF WOMEN THROUGH INTERNATIONAL CRIMINAL LAW: HOW CAN INTERNATIONAL CRIMINAL LAW

CONTRIBUTE TO EFFORTS TO IMPROVE THE HEALTH OF WOMEN?

Judge Navanethem Pillay International Criminal Court One of the greatest assaults on the health of women is sexual violence. Rape and other forms of sexual assault are brutal physically and psychologically under any circumstances, but the circumstances of war or serious conflict deprive women of the most basic protections of the law. It is in this context that I want to address the progress we have made in protecting women under international criminal law. International criminal law is primarily an instrument to punish offenders after the crimes have occurred. However, it is also, hopefully, a vehicle for deterrence of future crimes. Moreover, justice means restoring the dignity of the victims, as a part of healing. How has international criminal law changed to better punish and deter crimes against women? To answer this question, we need to consider the history behind sexual assault crimes in international law; the role of the International Criminal Court today; the progress in defining sexual violence crimes; procedures in the Court to protect women; and reparations for victims. I. HISTORY Although crimes committed during war or serious conflicts have existed for centuries, it is the Nuremberg and Tokyo trials after World War II that stand as
Judge, International Criminal Court. Born in South Africa in 1941, Judge Pillay was the first woman to be appointed acting judge of the High Court of South Africa by the post-Apartheid Mandela government. In 1995, she was elected by the United Nations General Assembly to be a judge on the International Criminal Tribunal for Rwanda, where she served for eight years, including four years as president. In 2003, she was elected by the Assembly of State Parties to the Rome Statute to be one of the eighteen judges of the International Criminal Court. Judge Pillay is the United Nations High Commissioner for Human Rights, as of September 1, 2008.

16

EMORY INTERNATIONAL LAW REVIEW

[Vol. 22

a beginning point in contemporary international criminal law. To understand the progress that has occurred in recognizing and protecting women during conflicts, it is helpful to remember how little rape was acknowledged in the aftermath of World War II. A. Nuremberg and Tokyo First, neither rape nor other gender-based crimes are included in the charter for the military trials at Nuremberg. Nor are they listed in the charter for the similar trials that occurred in Tokyo. Were the prosecutors and courts aware of sexual assaults during the war? Without question, they knew of such atrocities and had evidence of them. At Nuremberg, evidence was introduced of rape, but nothing about rape is included in the judgment.1 The prosecutors in the Tokyo Tribunal took a stronger stance, charging rape and convicting several defendants of rape as a war crime on the basis of responsibility for the actions of those under their command or control.2 Even in the Tokyo Tribunal, however, massive atrocities, such as forcing thousands of women to be comfort women to Japanese soldiers, were not prosecuted. Moreover, despite the acknowledgment of rape in the judgments, not one woman was called to testify in person about a sexual assault.3 The proliferation since the end of the Cold War of internal or civil wars, the hold-over conflicts from the post-colonial era, and the major military incursions associated with the contemporary war on terror have important implications for women. In 2005, there were nineteen major conflicts and many more small-scale violent confrontations ongoing in different parts of the world. When contrasting todays wars with those of previous generations, it is commonly noted that whereas in the past, eighty to ninety per cent of the casualties were military, today the same percentages are more likely to be civilians, of whom the majority are women and children.4

Richard J. Goldstone, Prosecuting Rape as a War Crime, 34 CASE W. RES. J. INTL L. 277, 279 (2002). Theodor Meron, Rape as a Crime Under International Humanitarian Law, 87 AM. J. INTL L. 424, 426 & n.14 (1993). 3 Goldstone, supra note 1, at 279. 4 Maxine Molyneux and Shahra Razavi, Beijing Plus 10: An Ambivalent Record on Gender Justice 19, U.N. Res. Inst. for Soc. Dev. Occasional Paper No. 15, Mar. 1, 2006.
2

2008]

KEYNOTE ADDRESS

17

B. ICTY and ICTR The United Nations Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY) in 19935 and the International Criminal Tribunal for Rwanda (ICTR) in 19946 and recognised from the reports of the Commission of Experts that sexual crimes had been perpetrated in the former Yugoslavia and Rwanda. Hence the statutes of both Tribunals explicitly prohibit rape as a crime against humanity and as a war crime a clear advancement from the Nuremberg and Tokyo Tribunals. The ICTY and ICTR Statutes were largely based on the 1949 Geneva Conventions7 and 1977 Additional Protocols8, both of which incorporated rape and sexual violence as war crimes. II. THE ROLE OF THE COURTS: THE AKAYESU TRIAL Statutory progress is not sufficient by itself. The courts must also actively take part in ensuring accountability for sexual crimes. I encountered this need firsthand. In an early case in the ICTR, Prosecutor v. Akayesu,9 I was one of the three trial judges. Akayesu was the former Mayor of Taba commune in Rwanda. The Prosecutor had charged genocide, crimes against humanity, and war crimes, but had not explicitly charged any sexual assaults as the basis for those crimes. During trial, a witness testified to the gang rape of her six-year-old daughter. When the judges asked questions about the alleged rape, the witness named the perpetrators. The Prosecutor investigated these crimes and the Court allowed the addition of rape charges to the indictment. Another witness, Witness JJ, testified to numerous acts of sexual violence and gang rapes
S. C. Res. 808, U.N. Doc. S/RES/808 (Feb. 22, 1993). S. C. Res. 955, U.N. Doc. S/RES/955 (Nov. 8, 1994). 7 See Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 (Geneva Convention I); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 (Geneva Convention II); Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (Geneva Convention III); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 (Geneva Convention IV). 8 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) art. 76, June 8, 1977, 1125 U.N.T.S. 3; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of NonInternational Armed Conflicts (Protocol II) art. 4 (2), June 8, 1977, 1125 U.N.T.S. 609. 9 Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment (Sept. 2, 1998).
6 5

18

EMORY INTERNATIONAL LAW REVIEW

[Vol. 22

perpetrated upon her during the Rwandan conflict. Based on the testimony and new charges, we delivered the first conviction in history of rape as the crime of genocide.10 The Court found on the basis of the evidence that sexual violence was directed solely against Tutsi women with the intention of destroying the Tutsi group as a whole, thus meeting the elements of the crime of genocide. III. THE INTERNATIONAL CRIMINAL COURT Building on the statutory and case law developments as well as the experience of judges and other participants, the International Criminal Court (ICC) has made even greater advances in recognizing sexual crimes. A. Creation, Jurisdiction, and Crimes The ICC was created by a treaty called the Rome Statute, which was finalised at an international conference in July 1998 and entered into force on July 1, 2002. As of January 2007, 104 countries have ratified the Rome Statute and joined the ICC. (Notably and unfortunately, the United States is not among those countries that have joined.) The ICC Statute lists the crimes that fall within its jurisdiction, described as the most serious crimes of concern to the international community as a whole, namely: genocide, crimes against humanity, war crimes and crimes of aggression. Except for the crime of aggression, which has yet to be defined, the other crimes are defined in the Statute and a non-binding document called Elements of Crimes adopted by the state parties. The ICC is an independent institution located in The Netherlands. It is not part of the United Nations. It is overseen by the Assembly of State Parties (ASP), made up of representatives of every country that has ratified the Rome Statute. The ASP elects the Judges, votes on amendments to the Statute, and approves the ICCs budget. The ICC has a complement of eighteen Judges, eight of whom are women. The ICC has more female judges than any prior international court. The ICC only has jurisdiction over crimes committed since July 1, 2002. The ICC is governed by the principle of complementarity, which means that states have the primary right to investigate and prosecute the ICC crimes. The
Kelly D. Askin, A Decade of the Development of Gender Crimes in International Courts and Tribunals: 1993 to 2003, 11 HUM. RTS. BRIEF 16, 17 (2004).
10

2008]

KEYNOTE ADDRESS

19

ICC complements domestic courts and will defer to national jurisdiction unless they are unwilling or unable to investigate or prosecute the ICC crimes. If all the other requirements are met, the ICC may investigate and prosecute an individual if: The accused is a citizen of an ICC member state, or The alleged crime took place in the territory of an ICC member state, or The UN Security Council asks the ICC to open an investigation, or A country voluntarily accepts ICC jurisdiction.

The Security Council can vote to block any investigation or prosecution for a year at a time in the interests of its peace agenda. The Prosecutor is subject to checks and balances by provisions in the Statute and the supervisory powers of the Pre-Trial Chamber, thereby protecting against fears of political abuse.

The Rome Statute is a landmark not only for creating a permanent International Criminal Court but also for incorporating substantive, procedural, and structural provisions essential to the courts capacity to fairly prosecute and judge gender crimes. In this respect the Rome Statute seeks to end impunity for perpetrators of sexual and gender crimes as well as provide a process that is respectful and protective of women survivors. B. ICC and Sexual Violence Crimes The ICC Statute addressed some of the gaps in the traditional treatment of sexual violence crimes in international treaties and tribunals. The ICC Statute explicitly lays down a number of sexual violence crimes unprecedented in international criminal law. For the first time, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation or any other form of sexual violence of comparable gravity were explicitly incorporated as both crimes against humanity and war crimes. Also sexual violence crimes can now be prosecuted under the crime against humanity of persecution on the basis of gender. Sexual violence crimes can also come under other non-specific sexual violence crimes, such as crimes against humanity of torture, enslavement, and other inhuman acts.

20

EMORY INTERNATIONAL LAW REVIEW

[Vol. 22

1. Overarching Principle Against Gender and Other Forms of Discrimination Article 21(3) of the ICC Statute provides that the application and interpretation of the law must be consistent with internationally recognised human rights, and be without any adverse distinction founded on grounds of gender, as defined in Article 7(3), age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status. The definition of gender for all purposes is contained in Article 7(3), which provides: For the purposes of this statute, 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 than the above. The definition thus recognises the social construction of gender, distinguishing biology and social roles, and encompasses both male and female persons. According to the Womens Initiative for Gender Justice:
This provision has broad impact, requiring, for example, that gender violence be investigated and prosecuted consistently; that decisions on complementarity take into account the state judiciarys capacity to prosecute sexual and gender violence crimes in a non-discriminatory way; that the elements of crimes be developed so as to be gender inclusive and non-discriminatory; that the rules of evidence and procedure preclude gender discriminatory stereotypes; that the courtroom be an enabling one, minimizing trauma for women and men survivors of sexual violence; and that witness protection and participation take into account the particular risks to women witnesses as well as interests of the victims of gender and sexualized 11 violence.

2. War Crimes The ICC document, Elements of Crimes, has been drawn as a guide for adjudication of the crimes and indicates that a particular conduct may constitute one or more crimes. War Crimes are conduct that occurs in the context of and is associated with either an international or non-international armed conflict. Therefore, to
11 Womens Initiatives for Gender Justice, Materials Distributed at the Seminar on Gender, Intl Crim. Ct. (Feb. 19, 2008) as paraphrased by the author, available in part at http://www.iccwomen.org/wigjdraft1/ Archives/oldWCGJ/resources/bplus5/part1.htm.

2008]

KEYNOTE ADDRESS

21

constitute a war crime, sexualized violence must have occurred in geographical or temporal proximity to war or associated with war, for instance taking advantage of conditions of war. War crimes explicitly include rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and other forms of sexual violence of comparable gravity. They rank as grave breaches and serious violations in international and internal armed conflict. 3. Crimes Against Humanity The same list of sexual crimes enumerated as war crimes is included in the enumeration of acts that may constitute a crime against humanity once the threshold elements have been met according to Article 7(1), Article 7(2), and Article 7(3), describing the context in which the conduct must take place against any civilian population (committed on a widespread or systematic basis pursuant to or in furtherance of a policy to commit an attack against a civilian population). The crimes are actionable whether committed by official or private actors both in armed conflict and peace time. The explicit statement of these sexual crimes is significant for the recognition they give that these are crimes, and are as serious as other crimes such as killings, torture and inhuman treatment. Many national legal systems, including my own, South Africa, do not have these crimes listed in their statutes, thereby failing to provide access to justice for victims of these crimes. Those states that have passed national legislation implementing the ICC Statute will be faced with the duty to prosecute these specific crimes nationally in light of their undertaking to do so in the international context. The new recognition of these old sexual crimes will hopefully serve to reverse traditional attitudes that cloaked these invasive forms of sexual violence as trophies of war, collateral damage, comfort women, and other euphemisms. 4. Genocide As for the crime of genocide, rape is not one of the enumerated acts, like murder or torture, in the Genocide Convention of 1948. This Convention was adopted verbatim into the Statutes of the ICTY, ICTR and ICC, and therefore rape is still not statutorily considered as a free-standing act of genocide. The ICC Statute did not revise the Genocide Convention to specify women as a group and to specify sexual violence as an enumerated act.

22

EMORY INTERNATIONAL LAW REVIEW

[Vol. 22

Nevertheless, we were able to find genocide in the Akayesu case on the basis that rape and sexual violence committed against women of the Tutsi ethnic group, with the intention of destroying the Tutsi Group as a whole, constituted genocide under the Genocide Conventions enumerated acts of torture and serious bodily or mental harm. In the ICC Elements of Crimes document, a footnote is added to Article 6(b) on Genocide12 that causing serious bodily or mental harm includes, but is not necessarily restricted to, acts of torture, rape, sexual violence or inhuman or degrading treatment. The precedent for this was established in the case of Akayesu.13 IV. DEFINITIONS OF RAPE A. ICTR Akayesu Case The Akayesu case was also groundbreaking in defining rape. We stated in the decision that we found no commonly accepted definition of the term rape in international law and defined rape as:
a physical invasion of a sexual nature, committed on a person under circumstances which are coercive. The Tribunal considers sexual violence, which includes rape, as any act of a sexual nature which is committed on a person under circumstances which are coercive. Sexual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact.

We stated that rape was a form of aggression and, like torture, rape is used for such purposes as intimidation, degradation, and humiliation. The definition focused on the concept of rape in situations of mass violence. The conceptual definition of rape in Akayesu is broadly formulated. It is not limited to conventional notions of rape requiring penetration, nor does it require lack of consent which some national jurisdictions require as an element of the crime.

12 Intl Crim. Ct., Elements of Crimes, Article 6(b)(2) n.3, http://www.icc-cpi.int/library/about/ officialjournal/Element_of_Crimes_English.pdf. Serious bodily and mental harm is clarifed as including but not necessarily restricted to acts of torture, rape, sexual violence or inhuman or degrading treatment. Id. 13 Prosecutor v. Akeyesu, Case No. ICTR-96-4-T, Judgment, 504 (Sept. 2, 1998).

2008]

KEYNOTE ADDRESS

23

It is noteworthy that the Akayesu definition has been incorporated virtually verbatim in several jurisdictions, including both California and Illinois where gender violence for civil purposes is defined in part to include [a] physical intrusion or physical invasion of a sexual nature under coercive conditions.14 B. ICTY Furundija Case This definition has been followed by various other trial chambers in the ICTR and ICTY. In the case of Furundija,15 the ICTY declared the Akayesu definition not to be specific enough, and based on its evaluation of national jurisdictions, re-asserted the mechanical definition of rape as: (i) the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator, or (b) of the mouth of the victim by the penis of the perpetrator by coercion or force or threat of force against the victim or a third person.

(ii)

C. ICTY Kunarac Case On 22 February 2001, a third definition was established in the Kunarac case in the ICTY.16 The trial chamber concluded that the true common denominator is the violation of sexual autonomy, and set out three requisites for the crime of rape: (i) (ii) the sexual activity is accompanied by force or threat of force to the victim or a third party; the sexual activity is accompanied by force or a variety of other specified circumstances which made the victim particularly vulnerable or negated her ability to make an informed refusal; or the sexual activity occurs without the consent of the victim.

(iii)

14 Catharine A. MacKinnon, Defining Rape Internationally: A Comment on Akayesu, 44 COLUM. J. TRANSNATL L. 940, 956 (2006) (quoting CAL. CIV. CODE 52.4(c)(2) (West 2003); 740 ILL. COMP. STAT. 82/5(2) (West 2004)). 15 Prosecutor v. Furundija, Case No. IT-95-17/1-T, Judgment, 180185 (Dec. 10, 1998). 16 Prosecutor v. Kunarac, Kova and Vukovi, Case No. IT-96-23 & IT-96-23/1, Judgment, 440, 457 60 (Feb. 22, 2001).

24

EMORY INTERNATIONAL LAW REVIEW

[Vol. 22

D. Elements of Crime: Article 7(1)(g)1Crime Against Humanity of Rape The ICC Elements of Crime for Rape appears to incorporate all three definitions: the conceptual and gender-neutral Akayesu definition, the mechanical body-part definition, and the consent-based definition. Elements 1. The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any part of the body. 2. The invasion was committed by force, or by threat of force or coercion, such as that caused fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent. As the ICC has not yet held any trial, these and other elements of the enumerated sexual violence crimes are yet to be adjudicated. V. PROTECTION OF VICTIMS AND WITNESSES Another critical part of international criminal law is the protection of victims and witnesses, both physically and from undue distress when testifying. The ICC statute again reflects progress in these areas. The main provisions governing the protection of victims and witnesses in the ICC Statute are Articles 68 and 69(2) of the Rome Statute and Rules 87 and 88 of the Rules of Procedure and Evidence. Appropriate measures must be taken throughout all phases of the court proceedings and the post-trial phase. The court is required to protect the safety, dignity and privacy and physical and psychological well being of victims and witnesses, taking into account factors such as age, gender and health, and in particular crimes involving sexual or gender violence or violence against children. These concerns may be safeguarded by measures respecting confidentiality and anonymity, and preventing re-traumatisation.

2008]

KEYNOTE ADDRESS

25

A. Victims and Witnesses Unit The ICC provides for the creation of a Victims and Witnesses Unit (VWU). The Registry has established such a unit and holds ongoing consultations with civil society organisations on the needs and goals of victims. The VWU will provide protective measures, security arrangements, counselling and other appropriate assistance for witnesses, victims and others at risk on account of their testimony. Furthermore, this unit must include staff with expertise in trauma. B. Evidentiary Rules Relating to Sexual Violence The Rules of Procedure and Evidence safeguard victims in sexual violence cases from intrusive, unfair or prolonged questions, or re-traumatisation. Testimony of the victim need not be corroborated (Rule 63(4)) and evidence of other sexual conduct of the victim will be subject to an assessment as to whether the probative value outweighs any prejudice to the witness or to a fair trial (Rule 71). This is similar to the rape shield laws in the United States. Because the crimes within the jurisdiction of the ICC are serious atrocities, consent is generally not an issue in sexual assault forms of the crimes. Under Rule 72, evidence of consent will be presumptively unacceptable and subject to judicial assessment in camera prior to its introduction. Rule 70(d) articulates a set of principles respecting evidence in cases of sexual violence that are designed to preclude inferences of consent where the circumstances are coercive, where the person is incapable of giving genuine consent, and where the victim is silent or does not resist. Rule 70 also precludes inferences, with regard to credibility, character, or predisposition to sexual availability based on prior or subsequent sexual conduct of the victim or witness. VI. VICTIM PARTICIPATION The ICC is the first court at the international level to provide for victims participation in proceedings. The Statute fills a gap in justice by explicitly providing for the right of survivors to participate in the justice process, directly or through legal representatives, by presenting their views and concerns at all stages of proceedings to the Court. This is an important and innovative opening in international criminal courts providing direct access to justice for survivors of ICC crimes. The rules require the Court to ensure that the distinct interests of different victim groups be represented, including victims of gender

26

EMORY INTERNATIONAL LAW REVIEW

[Vol. 22

violence (Rule 90(4)). Information about participatory rights and standard application forms has been posted on the ICC website. VII. REPARATION FOR VICTIMS The United Nations statutes of the ICTY and ICTR focused on retributive justice and neglected to provide for restorative justice in the form of reparation for victims. When I was President of the ICTR, I addressed a letter to the UN Secretary General17 on behalf of the judges and in response to complaints from Rwandans of injustice. Rwandans at one stage called a boycott of the Tribunal and were particularly aggrieved that the Tribunal was providing HIV/AIDS anti-retro viral medication to detainees in its custody, whereas victims of the genocide were not receiving any aid or treatment. We requested the United Nations to remedy this gap in the Statute and make provision for the compensation for victims. The ICC Statute and its Rules of Procedure and Evidence contain an elaborate reparations regime (Articles 75 and 79; Rules 94-99). For the first time in history, an international criminal court will give victims direct access to request and receive reparation. The Court will establish principles of reparation and in certain cases award reparations to, or on behalf of, victims, including restitution, compensation and rehabilitation. The Court may invite and take into account representations from or on behalf of the convicted person, victims, other interested persons or interested states. The ASP has established a Trust Fund as provided for in Article 79 for the benefit of victims of crimes within the jurisdiction of the Court, and for the families of such victims. The funds provided through reparations are about more than just money: they are a vital tool in rebuilding lives and communities. VIII. GENDER REPRESENTATION Another aspect of the ICC that will help women is its gender representation requirements. The Statute requires that the need for a fair representation of female and male judges be taken into account in the selection process. A similar provision applies to the recruitment of staff in the Office of the
Letter dated 9 November 2000 from the President of the International Criminal Tribunal for Rwanda addressed to the Secretary-General, U.N. Doc. S/2000/1198/Annex (Dec. 15, 2000).
17

2008]

KEYNOTE ADDRESS

27

Prosecutor and in all organs of the Court. The ICC has more female judges than any other prior or current international court: eight of the eighteen Judges are women. The Statute requires that in the process of selecting judges, prosecutors, and other staff, the need for legal expertise on violence against women or children be considered. This additional provision recognises both the importance attached to gender crimes in the work of the Court and the need for expertise and sensitivity to ensure effective processes. To ensure that gender crimes are investigated, the Office of the Prosecutor is required to appoint legal experts on specific issues, including sexual violence. IX. THE IMPACT AND THE FUTURE How effective are the changes in the treatment of sexual crimes and women in international criminal law? That is not an easy question to answer. Sometime after the judgment in Akayesu, I received a visit from a research journalist returning from Rwanda. She recounted that Witness JJ was ill and isolated from her community, living in terrible conditions in a hovel on bare ground; she was without food and basic necessities and medicines. The journalist accused the Tribunal of using Witness JJ and abandoning her, without a care for her survival. This sad reality reminds us that international criminal law is only one tool, one part of the process of protecting women in the devastating situations of conflict and post-conflict. It is necessary to have a partnership of law, medicine, psychology, and other fields to better achieve the protection of womens health.

28

EMORY INTERNATIONAL LAW REVIEW

[Vol. 22