Donna Axel, cofounder, Women’s Caucus for Gender Justice in the International Criminal Court (ICC)
Cherif Bassiouni, Drafting Chairman, ICC Treaty Conference
Eleanor Conda, representative, Women’s Caucus for Gender Justice in the ICC
Benjamin Ferencz, former Chief Prosecutor, Nuremberg War Crimes Tribunal
Jerry Fowler, consultant, Lawyer’s Committee for Human Rights
Lorena Fries, representative, Women’s Caucus for Gender Justice in the ICC
Bill Pace, convenor, Coalition for the ICC
Marco Perduca, No Peace Without Justice
Jelena Pjecic, representative, Lawyer’s Committee for Human Rights
Muhammad Sacribey, Ambassador of Bosnia to the ICC Treaty Conference
This text has been professionally transcribed. However, for timely distribution, it has not been edited or proofread against the tape.
DONNA AXEL: Rape has been listed before. The difference is, is that it was linked to outrages upon personal dignity. Therefore it was linked to this concept of honor. And so now what we have the capability of doing is to have rape recognized and codified into international law as a crime against a woman, as a crime of violence, not just against her honor.
KEITH PORTER: This week on Common Ground, a look at how a new international criminal court would deal with crimes against women.
FEMALE VOICE: Forced pregnancy means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law.
PORTER: Common Ground is a program on world affairs and the people who shape events. It’s produced by the Stanley Foundation. I’m Keith Porter.
WILLIAM PACE: This, if we succeed, would be the last major international organization established in the Twentieth Century.
PORTER: Bill Pace led a coalition of non-governmental organizations at this summer’s global conference in Rome to establish an international criminal tribunal. This new court would try individuals, not nations, charged with committing war crimes, crimes against humanity, and genocide. At the meeting, 120 nations voted in favor of the final treaty document, and 7 nations, including the U.S., Sudan, Libya, and China, voted no. Now, 60 nations must sign and ratify the document before the court will come into power. Bill Pace spoke to the press just hours before the final vote in Rome.
PACE: This was not another League of Nations. It was a flawed, as the United Nations was flawed at its incumbency. It’s a flawed new institution, but it is an institution that addresses that fundamental goal of the United Nations, which is to rid the world of the scourge of war. This won’t outlaw war, but it says that there are certain kinds of behavior that people who commit war all of these centuries, where as a world community are going to say, “Stop it!” We’re going to prevent it in the future. We’re going to deter it. And when it occurs we’re going to bring ’em to justice. And we look forward to working in these next years to make sure that whatever the result is today we carry it forward, we keep pushing it forward, so that in the next century millions of victims—deaths and rapes and torture—will be prevented.
PORTER: In his description of the “scourge of war,” Pace mentioned torture, death and rape. Torture and death have been explicit parts of all attempts to define war crimes and draft certain codes of warfare, for centuries. But rape, sexual violence, and specific crimes against women have rarely been addressed. Such crimes have no doubt played a role in warfare throughout human history. Only recently though have they been mentioned by name in international law. Making them an explicit part of the international criminal court was an uphill battle.
PACE: There are important achievements here that the participation of civil society can take some important credits for. Violence, sexual violence, and gender issues have been included in this statute. It would not have happened without the efforts of the Women’s Caucus for Gender Justice in the ICC over the last three years.
AXEL: The Women’s Caucus for Gender Justice in the International Criminal Court is comprised of over 300 nongovernmental organizations from various parts, all parts of the world, really.
PORTER: This is Donna Axel, cofounder of the Women’s Caucus.
AXEL: We have approximately ten focal points, which means ten different women who are based in different parts of the world, such as Central or Latin America, Asia, Africa, Washington, DC, even, California. We have people in different parts of the world who are actively doing outreach and also working within the caucus to develop our legal texts, proposals that we’ve given to governments and NGOs.
PORTER: Part of the planning meetings coming up to the Rome conference?
AXEL: Yes. We were, we formed in, we began forming in February of 1997. And we’ve been—and there was a preparatory committee at that time—and we have been following all of the preparatory committee meetings since that time. And certainly since it’s been in the critical phase of going towards a treaty conference in Rome, we’ve been actively involved in the inter-sessional meetings. Our director is Alda Fascio and the co-director, Eleanor Conda. Aldo Fascio is from Latin America; Eleanor Conda is from the Philippines. And they have been an incredible force behind the momentum and power of this caucus. It’s not that other NGOs who are part of the overall coalition, it’s not that they don’t want this too. Some do, some are not as concerned. But what the women’s caucus is really pushing for is this understanding and recognition by the governments of what gender is. And to incorporate that into each and every provision, that there must be certain protections. That there also must be certain rights acknowledged.
LORENA FRIES: Until now justice has been built up on crimes where men think upon other men being violated. And from now on we hope that there is going to be a new vision that women are also subjects of crime and that is going to be recognized in this statute.
PORTER: Lorena Fries is the Women’s Caucus Representative from Chile.
FRIES: And you have to see, if you look at countries like Rwanda or Bosnia, or even the former dictatorships in South America, we always thought that men were the only violated in human rights contents. And that’s not true. Because in almost these wars, internal or not, women and children are the first targets of those kinds of problems.
AXEL: When we think about it, and we think back to the Geneva Conventions and prior to that even, we think about all the wars, we’ve been working, we in the world, have been working under the assumption of sort of the laws of war, which are created by men. And that was dealing with men who were in war. We were not, women were not considered when making those laws. So right now we have an opportunity to incorporate women’s concerns. Crimes that are crimes to women.
PORTER: If the treaty does include the language that you hope it includes on sexual violence and on gender, will this be the first time that such language has been codified into international law?
AXEL: Well, with respect to sexual violence—again, when we speak about war crimes—within the Geneva Conventions rape has been listed before. The difference is, is that it was linked to outrages upon personal dignity. Therefore it was linked to this concept of honor. And so now what we have the capability of doing—and what looks like is being done—is to have rape recognized and codified into international law as a crime against a woman, as a crime of violence, not just against her honor.
FRIES: In Latin America we are used to see violence related to private lives of women. And here, that means to deal with public violence upon women. And that’s something new for our region.
PORTER: Even among people who recognize the seriousness of these crimes, some argue that the crimes were already adequately acknowledged by international law.
FERENCZ: The principle of crimes against humanity is clear. And if you have mass rapes you don’t have to spell out really, in my judgment, that gender will be protected, and the gender includes females and males, which is some of the debates which are going on
PORTER: Benjamin Ferencz served as Chief Prosecutor in the Nuremberg War Crimes Tribunals following World War II.
FERENCZ: If you protect human beings generally, everywhere, it will take care of the details of children’s rights and women’s rights. So it’s no harm in putting it in, and if it can be accepted without any difficulty, fine. And if not, they will be protected anyway.
PORTER: We see in the definitions here, mentioned several times of rape, sexual slavery, and forced prostitution, forced pregnancy, things like that. That element of it seems to me at least to be groundbreaking. Do you agree?
JERRY FOWLER: Yes. It is very important that they’ve included so-called gender crimes in the statute. And that is a great step forward.
PORTER: Once it became apparent that sexual violence and crimes against women would be a definite part of the international criminal court statute, the battle began over how to define each of these crimes and terms. Jerry Fowler was in Rome as a Representative of the Lawyer’s Committee for Human Rights.
FOWLER: One of the great horrors that we saw in Bosnia was the use of what’s termed in the statute “forced pregnancy.” Where Bosnian women were impregnated through rape, repeated rape, as a means of attacking the Bosnians as an ethnic group. And so it’s very important that that has been recognized as a crime, a serious international crime, and included in the statute.
PORTER: According to Article VII, Paragraph 1, of the court statue, crimes against humanity include:
FEMALE VOICE: Enslavement, rape, sexual slavery and forced prostitution, forced pregnancy, and forced sterilization or other forms of sexual violence of comparable gravity.
PORTER: Article II, Paragraph 2, Part C, says:
FEMALE VOICE: Enslavement means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.
PORTER: And Part F of Paragraph 2, reads:
FEMALE VOICE: Forced pregnancy means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy.
PORTER: The Vatican and some Muslim states were particularly concerned that the definition of forced pregnancy not be used as an endorsement of abortion. Monsignor Renato Martino represented the Holy See in the treaty negotiations.
PORTER: What were your thoughts on the final language used to describe forced pregnancy?
MONSIGNOR MARTINO: Oh, we accepted it because its defining only what it was meant for. And not, there is no possibility to interpret it in a broad way. So we accepted this definition.
FOWLER: The language on forced pregnancy is compromise language that was the result of some quite contentious negotiations.
PORTER: Again, Jerry Fowler.
FOWLER: I think it’s good that at the end of the day a compromise was found so that the essence of the crime, which I think both sides agree is a crime and is an atrocious crime, is included in the jurisdiction of the court. I think that there were some concerns that the language not be interpreted to apply to situations that the parties didn’t have in mind. So I’m glad that they were able to arrive at a compromise.
PORTER: All of these specific crimes of sexual violence are mentioned again in the court statute’s next section, Article VIII, on war crimes. This section includes violations which take place in international conflicts and in some instances, armed conflicts which take place inside a single nation.
PORTER: We’re talking in this edition of Common Ground about crimes against women and the new international criminal court. Printed transcripts and audio cassettes of this program are available. Listen at the end of the broadcast for details. Common Ground is a service of the Stanley Foundation, a nonprofit, nonpartisan organization that conducts a wide a range of programs meant to provoke thought and encourage dialogue on world affairs.
PORTER: You included language in this document about sexual violence and it seems to be the first time that this has been codified into international law. Is that something remarkable to you?
CHERIF BASSIOUNI: Well it is. I was the one to have first called for it when I investigated the war crimes in the former Yugoslavia and discovered the rapes and policy of sexual violence.
PORTER: Cherif Bassiouni was Chairman of the Drafting Committee at the International Criminal Court Treaty Conference in Rome. He was also Chief Investigator of war crimes in the former Yugoslavia.
BASSIOUNI: Since then the Women’s Caucus have been very active in promoting the issue and now it’s on the forefront. And it’s here and I’m glad that it is finally put in the statute with such clarity and without any ambiguity.
PORTER: On the existing war crimes tribunals, how have you felt about the way sexual crimes and crimes against women, violence against women, have been treated? In the Rwanda tribunal and the Yugoslavia tribunal?
AXEL: There are a couple of things have happened over the years. And through learning and through some progressive developments.
PORTER: Again, this is Donna Axel, of the Women’s Caucus.
AXEL: One is Judge Gabriel Kirk McDonald is there. That has been a, I mean her presence and her wisdom has brought a lot to the ability of these courts to function well. Also Judge Pele.?? Then there’s also Patricia Visser-Sellers. These are women who also have backgrounds and interests in prosecuting—or I should say for the judges—in seeing justice, and true justice. And for, with respect to Patricia Visser-Sellers, who’s the gender expert on the prosecution team, on how to, looking at how to prosecute, for example rape. Looking at how to prosecute types of sexual abuse, sexual violence. And so because of people like that, individuals, we’ve seen some positive results and some effective prosecutions. But I think it’s been a long uphill battle.
FRIES: I would say that it’s better than in the past.
PORTER: This again is Lorena Fries.
FRIES: Those two tribunals, they’re better, it’s a justice where the women’s concerns are more into the way of making justice than before. But still it’s not enough. And that’s why, from then on the experience we got from those tribunals are nurturing this one.
PORTER: What about this issue of gender balance in the court? Are you concerned with that issue as well?
FRIES: Well, yes. We are very concerned, but in order to bring justice for women we do need women on the court. So we were being, pushing very hard to have not even, not only a balance between men and women in the court, but also to have legal advisors on gender or on violence upon women. So we’re pushing very hard.
AXEL: One of the issues that’s come up around that of course is because of the fear of some delegations to use the word gender, is that there’s been a movement to not incorporate a qualification for judges that would say, “We need to have gender balance on the court,” or “We need to have legal expertise in how to prosecute sexual and gender violence,” etc. There’s this you know, worry about, “What does that word mean?” And actually there’s a worry because some fear that it’s linked to homosexuals and giving rights to homosexuals. So we’re seeing that the misunderstanding of the word “gender” is also sort of bringing to the surface fears about protections that we could be giving to human beings. You know, one woman said to me, “If they take out the word ‘gender’ we’re invisible. And we will have been denied. And in denying us, they deny themselves, they deny men and women everywhere.” And so today we see the word “gender,” it may still be in there, so we may not be invisible. But my concern is how will that be defined. So, still concerned.
PORTER: In the end, Article VII, Paragraph 3, reads:
FEMALE VOICE: For the purpose of this statute it is understood that the term “gender” refers to two sexes, male and female, within the context of society. The term “gender” does not indicate any meaning different from the above.
MARCO PERDUCA: One of the problems that I think we are encountering here is that, for instance, there’s no such thing as “gender” in other languages. So every time you have gender you have to translate it into two or three lines. And that makes, I think, a big problem from the very beginning.
PORTER: Marco Perduca is from a non-governmental organization called No Peace Without Justice.
PERDUCA: And then you have to really lobby hard on governments like most of the Arab states and some quite conservative countries, unfortunately also that we have in Europe. And Ireland here has played a very strange role. And of course we’re in Rome and the Holy See has a certain power. Not necessarily a big one, but it has joined the alliance of the Arab, the Muslim countries, and they have lobbied to have these things not spelled out in the document. Which is a step backwards if you want, if you compare it to other international documents and other international treaties that we have so far, in which it is quite spelled out that the, what is gender. It’s not easy to say it, but I mean, they could have put in a footnote a reference to other UN documents. But they have deleted that. So now it’s a very vague thing that says more or less women and men of birth. And nothing more than that. So I think this is very unfortunate. But we of course support the inclusion of sexual violence, mass rapes, but also other specific groups like homosexuals or children and all these things in crimes against humanity.
FERENCZ: The most important thing is what’s in the judge’s head. And not regarding other parts of the anatomy.
PORTER: This again is Benjamin Ferencz.
FERENCZ: Of course there should be, women should be entitled to the same rights as men in such matters. And they are in fact. We see the Chief Prosecutor in the international criminal tribunal for Yugoslavia, Louise Arbour Is female, of course. And the Chief Judge, Gabriel McDonald, is also female. It was not written in the statute that they had to be there. But they were there. Because a competent tribunal will look for the most competent people regardless of their gender, by which I mean female as well as male.
PORTER: Article XXXVII, Paragraph 8 of the final statute says:
FEMALE VOICE: The states parties shall in the selection of judges take into account the need within the membership of the court for 1) the representation of the principal legal systems of the world; 2) equitable geographical representation; and 3) a fair representation of female and male judges. States parties shall also take into account the need to include judges with legal expertise on specific issues, including but not limited to violence against women or children.
PORTER: This new court will have a full-time, independent prosecutor. Article XLIII, Paragraph 9, says:
FEMALE VOICE: The prosecutor shall appoint advisors with legal expertise on specific issues including, but not limited to sexual and gender violence and violence against children.
PORTER: The court statute also mandates that a Registrar be appointed to manage the non-judicial aspects of the court. Article XLIV, Paragraph 6.
FEMALE VOICE: The Registrar shall set up a Victims and Witnesses Unit within the Registry. This unit shall provide, in consultation with the Office of the Prosecutor, protective measures and security arrangement, counseling and other appropriate assistance for witnesses. Victims who appear before the Court and others who are risk on account of testimony given by such witnesses. The unit shall include staff with expertise in trauma, including trauma relating to crimes of sexual violence.
PORTER: The repeated mention of gender, sexual violence, and crimes against women, is an unavoidable hallmark of the statute creating the new international criminal court.
AMBASSADOR MUHAMMAD SACRIBEY: This is an issue we took the lead upon.
PORTER: Representing Bosnia in the Rome negotiations was Ambassador Muhammad Sacribey.
AMBASSADOR SACRIBEY: For a long time people have argued that crimes against women are implicitly included in the existing international humanitarian law. But as we’ve seen in many situations like Bosnia and Herzegovina, like Rwanda, like Sierra Leone, women are specifically now targeted. And because of this targeting we need to have of course a more specific mention of these crimes. In many ways also, if the crimes are more clearly recognized then there is less stigmatization associated with the victim. Women in most instances are made to feel ashamed because the crimes are not clearly set out on paper and therefore their victimization is not clear. They sometimes feel that they are at fault. This way I think women will be much more empowered, both in the context of prevention as well as hopefully pursuing those who have committed these crimes in the past and may commit them in the future.
ELEANOR CONDA: Indeed, explicit recognition in the statutes of this crimes, can be an accomplishment. But for women and for other NGOs, the defining language, especially of gender, and forced pregnancy, which for us is one of the most egregious crimes, is of importance. So we are left, in fact earlier where I was listening to one of the questions I said, “It is quite ironic that the question is before us like this: ‘Do we accept what we have now on the table?'”
PORTER: This is Eleanor Conda. She’s co-director of the Women’s Caucus for Gender Justice in the International Criminal Court. Despite the groundbreaking nature of the document in regard to women’s rights, there was still a sense of disappointment among many of the people who worked on these issues. Why? Because elsewhere in the document there are severe limits on who can bring a case to the Court and there is a provision which allows signers of the treaty to opt out of the war crimes section for up to seven years. This raises questions about whether this new legal weapon can really be used to protect women.
CONDA: When we started in this process we had a vision. We had a vision of this Court to be one of universal justice. But that was a long time ago. What we have now is a court that’s in many respects where virtually render inaccessible. To many victims, especially women, the jurisdiction of the Courts. And earlier one of our colleagues mentioned that opt-out regime, why should that be of particular importance to us in the Women’s Caucus? And to women in general? Because at the same time that it will preclude, it will preclude the inclusion of war crimes where women and the crimes, the serious crimes committed against them, and given the marginalization or ??-tion accorded this crimes against women by states, this crimes will be probably the first or the top in the list to be covered by the opt-out regime.
JELENA PJECIC: After I’ve seen the document I guess the first thing I could say is that we do have problems with it.
PORTER: Jelena Pjecic is from the Lawyer’s Committee for Human Rights.
PJECIC: It introduces a separate jurisdictional regime for war crimes. It allows states of the nationality of the accused and of the territory on which war crimes were committed, to opt out of the Court’s jurisdiction for a period of seven years. And we think that’s a step back for international law in the sense that international law provides universal jurisdiction currently over these crimes, and therefore no state consent is required once you’ve got custody of the accused.
PORTER: This document does contain some very strong language about sexual violence and crimes against women. Do you have any comment on that?
PJECIC: We are very pleased that it includes that language. It was an uphill battle and I think in that sense it, you know, it’s a small step in the right direction of recognizing crimes against women as crimes that do need to be punished and deterred in the future. And I think the ICC goes a significant way in that direction. Very pleased.
PORTER: In the end, women’s rights advocates seemed to see the treaty as both deeply flawed and worthy of celebration.
PORTER: Lorena, what does mean for organizations that you represent, back at home?
FRIES: It means a lot because we’re still dealing with crimes against women that are not, that have no laws in our countries, so that would be one possibility of making justice for women. So in our countries the NGOs of Chile, they’re pretty excited about that and they, and we hope, we hope we can have with this a good instrument for making justice for women.
PORTER: That is Lorena Fries of the Women’s Caucus for Gender Justice in the International Criminal Court. For Common Ground, I’m Keith Porter.
This is the second of three Common Ground broadcasts covering this summer’s International Criminal Court Treaty Conference in Rome. In a few weeks the third program will cover the remarkable role played by non-governmental organizations and civil society in the creation of this Court.
Our theme music was created by B.J. Leiderman. Common Ground was produced and funded by the Stanley Foundation.
Copyright © Stanley Center for Peace and Security