Forging a New Path to Gender Justice

The International Criminal Tribunal for the Former Yugoslavia (ICTY) in The Hague held two days of discussions this week devoted to examining its global legacy. The following text is drawn from remarks delivered by Alison Cole on behalf of the Open Society Justice Initiative:

In 2012, the ICTY and the International Criminal Tribunal for Rwanda (ICTR) will both be approaching their 20th anniversaries; the International Criminal Court (ICC) will mark its 10^th anniversary; the Special Court for Sierra Leone (SCSL) will complete its trials; and the Extraordinary Chambers in the Courts of Cambodia (ECCC) will be in the midst of its second case against senior leaders of the Khmer Rouge regime. Each institution operates in a very different and unique context. However, there are similar legacy themes, particularly the issue of the strengthening of the rule of law.

With respect to the ICTY and the ICTR, both tribunals led the way in forging a new path to justice in the 1990s, picking up from the international criminal law precedents established at Nuremburg. Both tribunals faced the issue of being established outside the country over which they had jurisdiction; and both came to appreciate the need to take additional efforts outside the courtroom to ensure the judgments would resonate in the local context. The ICTY pioneered outreach for international justice and peer-to-peer capacity building with local justice officials. The ICTR also conducted trainings and worked particularly closely with local civil society intermediaries.

Indisputably, one of the most far reaching and landmark achievements of the ICTY and the ICTR has been the development of the law regarding gender crimes. Prior to the establishment of the ICTY, the characterization of rape as a war crime remained debated in some quarters. Now it is fully established that rape may constitute a war crime, a crime against humanity, and an instrument of genocide.

The tribunals have further recognized rape and other forms of sexual violence as means of torture, forms of persecution, and indicia of slavery, in addition to other crimes such as inhumane acts.  They have articulated progressive definitions of rape, and the heart wrenching cases before these tribunals have galvanized a global movement recognizing sexual violence as an instrument of war and oppression.

A further critical legacy impact of the ICTY and ICTR has also been the role they played in paving the way for the other international and hybrid tribunals that followed.

The first of such subsequent tribunals, the SCSL, currently has particularly pressing legacy issues to address. The SCSL will be the first international court to close, with trial proceedings expected to terminate with the final judgment concerning Charles Taylor, anticipated for early next year. The SCSL has had the advantage of having all but one of their trials held in Sierra Leone itself, with more ready access to the national institutions in order to enhance its legacy impact, compared to the ad hoc tribunals which were based outside of the country concerned. However, the Open Society Justice Initiative issued a recent report regarding the legacy of the SCSL and identified key steps that remain to be taken to secure the legacy of the Court, in particular through ensuring the judgments are analyzed to find ways in which they can be utilized in local courts.

It is important to highlight that the SCSL has also made valuable contributions to the rule of law regarding gender crimes. Building upon the precedents established at the ICTY regarding enslavement, the SCSL was the first court to convict for sexual slavery, as provided for in its Statute. The SCSL also considered the scope for addressing new emerging fact patterns under the so-called residual category of crimes against humanity, namely other inhumane acts. The Sierra Leone civil war involved militia forcing women to engage in conjugal relationships, which the judges found to constitute a crime against humanity as an other inhumane act of forced marriage. This precedent has been followed at the Extraordinary Chambers in Cambodia where the co-investigating judges charged the accused in Case File 2 with forced marriage.

It is a similarly critical time for the Cambodia court regarding the Khmer Rouge to consider its legacy. With the largest courtroom in the world, sitting some 500 observers, the court made remarkable efforts over the course of the first trial against Duch (head of S-21 detention center) to bring people from all over Cambodia to watch the trials – over 20,000 people were in attendance. Now with the court starting its second trial with nearly 4,000 victims participating, and with serious questions over the status of the two remaining investigations, the Khmer Rouge court must ensure its legacy by conducting fair and independent trials and investigations.

Finally, the question of whether the ICC has a legacy impact remains to be considered to determine what steps a permanent institution would need to take in order to enhance its contribution to the local setting in which it operates. There are many questions to be answered such as the extent to which positive complementarity contributes towards the ICC’s legacy and how the prosecutor can best manage decisions on preliminary analysis situations or investigations that are closed.

It is remarkable to recall that the ICC Rome Statute was being negotiated in 1998, at the very early stages of international awareness of the law regarding gender crimes. Perhaps one of the most tangible legacy impacts of the ICTY and ICTR are the detailed provisions in the Rome Statute specifying prohibitions against rape and sexual violence. The groundbreaking gender cases before the ICTY and ICTR led to the ICC recognizing not just rape, but sexual slavery, enforced prostitution, forced pregnancy, and enforced sterilization in its statute, as well as gender based persecution and trafficking in women and children - including these crimes in the Rome Statute is a truly amazing achievement.

Although far from adequate, and there is much more to be done in redressing gender crimes and the offensive stereotypes surrounding sex crimes, the groundbreaking jurisprudence from the ICTY, ICTR, and SCSL will be instrumental in interpreting the Rome Statute and ending impunity. Indeed, all but one of the situations before the ICC include gender crimes in its charges.