Fighting Impunity for Sexual and Gender-Based Crimes

Sexual and gender-based crimes (SGBC), such as rape, sexual enslavement, systematic detention, forced “marriages,” torture, persecution, and human trafficking for sexual and labor exploitation, victimize women, men, girls and boys alike, often with lasting consequences for individuals and communities. While significant progress has been made in addressing these crimes in the international legal and policy arenas, much remains to be done.

On 25 March, The Hague Institute, acting in its capacity as a member of the International Criminal Justice Consortium, and Sweden and Botswana (the ad country co-focal points for complementarity of the Bureau of the Assembly of States Parties) hosted an expert roundtable and public panel discussion entitled Addressing Sexual and Gender-based Crimes (SGBC): The State-of-the-Art and Ways Forward.

The roundtable, which took place under the Chatham House Rule, focused on how to strengthen national judicial systems that adjudicate international crimes – with a particular emphasis on SGBC – through comprehensive capacity-building efforts. A detailed discussion of the complementarity regime of the International Criminal Court (ICC), as well as the Court’s new policy on SGBC, took place in this regard.

The public panel event brought together five distinguished practitioners and academics to discuss lessons learned from national and international prosecutions of SGBC, and what can be done to strengthen national capacities to address these crimes. Moderator Jelke Boesten (Senior Lecturer in Emerging Economies and International Development, King’s College London) raised four principal issues for discussion: whether the threat of prosecution works as a deterrent for SGBC; how international prosecutions contribute to post-conflict accountability for SGBC at the national level; how international law navigates the sociopolitical complexity of sexual and gender-based violence (SGBV) during war; and how to reconcile a broader agenda for gender justice with a singular focus on SGBC.

On the issue of deterrence, Fabricio Guariglia (Director of the Prosecutions Division of the Office of the Prosecutor, International Criminal Court) observed that measuring deterrence is notoriously difficult, particularly with regard to SGBC. He underscored, however, that international prosecutions have contributed to changing the global discourse around SGBC, and have had positive effects in specific cases (e.g. the referral of SGBC in Uganda to the ICC, and adjudicating SGBC through mobile courts in the Democratic Republic of Congo).

Michelle Jarvis (Principal Legal Counsel, International Criminal Tribunal for the Former Yugoslavia) addressed the issue of how international prosecutions contribute to accountability at the national level. She reflected that international prosecutions have been far more successful than national prosecutions at rejecting assumptions, prejudices and stereotypes concerning SGBC and victims of these crimes, primarily due to the obviously coercive context of armed conflict in which the incidents of SGBC adjudicated by international courts take place. International prosecutions have also highlighted the importance of thinking creatively when navigating less than ideal legal frameworks, as the prosecution at the International Criminal Tribunal for the Former Yugoslavia did when prosecuting rape as “enslavement” – a crime against humanity – in the landmark Kunarac case.

Brigid Inder (Special Gender Advisor to Chief Prosecutor Bensouda, International Criminal Court and Executive Director, Women’s Initiatives for Gender Justice) discussed the institutionalized nature of SGBV, noting that one of the main obstacles to accountability is the partial integration of women into the structures of justice, as evidenced by the selective incorporation of gender into legal theory and liability regimes. Additionally, the definition of specific legal concepts, such as consent in domestic systems and superior responsibility in international jurisdictions, has often narrowed the scope of accountability. Another barrier to accountability is that SGBC are often required to meet a higher evidentiary threshold than other crimes, as demonstrated by theKatanga judgment.

Birgitta Weibahr (Senior Policy Expert on Democracy and Human Rights, Swedish International Development Organisation (SIDA)) noted that prosecutions are only one component of gender justice, and emphasized the need to address SGBV in a comprehensive and coordinated manner, that includes political dialogue and diplomacy. Men and boys, as well as women and girls, should be recognized as agents of change and engaged as such.

SGBC are high on the global justice agenda for 2015, and combatting SGBC will require effective collaboration between all relevant stakeholders. The outcomes of the roundtable and public panel discussion will inform the work of both The Hague Institute and the facilitation on complementarity. The facilitation on complementarity will take the recommendations made during the roundtable discussion into consideration in its work on sexual and gender based violence in 2015. The Hague Institute will incorporate the outcomes of the two events in its current and future programming related to gender, which includes a conference on gender and transitional justice in Fall 2015 together with the International Center for Transitional Justice.

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