International Conference: 10 years review of the ICC. Justice for All? The International Criminal Court

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1 Le Bureau du Prcureur The Office f the Prsecutr Mrs. Fatu Bensuda Prsecutr elect f the Internatinal Criminal Curt ʺGender Justice and the ICC: Prgress and Reflectinsʺ Internatinal Cnference: 10 years review f the ICC. Justice fr All? The Internatinal Criminal Curt Statement Sydney 14 February 2012

2 Excellencies, Ladies and Gentlemen, Allw me t first thank the Faculty f Arts and Scial Sciences and the Faculty f Law at the University f New Suth Wales in Sydney fr this kind invitatin and especially fr cnvening this imprtant cnference. As we will celebrate this year the 10 th anniversary f the establishment f the Internatinal Criminal Curt, this will be an pprtunity t review and take stck f ur achievements but als f and challenges. In this sense, I believe the way internatinal criminal justice has evlved, especially in the recent decades, regarding the way it addresses sexual and gender vilence is very reflective f hw far we have actually gne. Remember that Rbert Jacksn, the Chief Prsecutr f the Nuremberg Tribunal, decided nt t present sexual crimes in the cases against the Nazi leaders. Indeed, the effrts that have been made since the mid 90s t btain accuntability fr atrcities cmmitted against wmen during the cnflict in the frmer Yugslavia helped establish hw rape and ther sexual vilence culd be instrumentalised in a campaign f gencide. This equally cntributed t the expanded understanding f sexual r gender vilence as war crimes and crimes against humanity. But perhaps the mst grundbreaking decisin advancing gender jurisprudence wrldwide is the Akayesu judgment delivered by the Trial Chamber f the Internatinal Criminal Tribunal fr Rwanda n 2 September Fr the first time in histry, rape was explicitly recgnized as an instrument f gencide. As described by the ICTR in the Akayesu case, rape is used t kill the will, the spirit, and life itself. The decisin by the ICTR Chamber prvided a definitin f rape a physical invasin f a sexual nature under circumstances which are cercive by s ding, placing gender crimes in a larger cntext. Mrever, the Special Curt fr Sierra Lene has addressed the issue f frced marriage as a crime against humanity. Page: 2 / 6

3 The Rme Statute f the Internatinal Criminal Curt is thus the result f a recent evlutin in internatinal law, recgnizing gender vilence and gender crimes. Hwever, it is nly in the Statute that a basis in gender first became an element f crime in psitive law, specifically f persecutin as a crime against humanity. Varius prvisins f the Statute als prscribe what can be characterised as gender crimes, such as rape, sexual slavery, enfrced prstitutin, frced pregnancy, as a war crime and/r crime against humanity. Article 54 f the Rme Statute f the ICC specifically prvides that the Prsecutr shall take int accunt the nature f the crime, in particular where it invlves sexual vilence, gender vilence r vilence against children. Additinally, Article 42(9) f the Statute requires the Prsecutr t appint advisers with legal expertise n specific sexual and gender vilence. Let me stress that this is nt nly a statutry bligatin, but als a requirement fr effective investigatins and prsecutins taking int accunt the interests f victims. Accrdingly, the Office has established a unit, the Gender and Children Unit (GCU), cmprised f advisers with legal and psych scial expertise t deal specifically with gender and children issues. The GCU advises the Prsecutr directly and prvides supprt t the Office s divisins, frm pre analysis thrugh t prsecutin phases. Furthermre, Prfessr Catharine A. MacKinnn was appinted as Special Gender Adviser t the Prsecutr f the ICC n 26 Nvember 2008, and prvides strategic advice t his Office n sexual and gender vilence. It is in this sense that the OTP has cnsistently endeavured t ensure its staff receives the prper training t integrate a gendered perspective int its investigatins and cases, whilst at the same time presenting gendered aspects f cnflict in cnnectin with the cntextual elements f the crimes as defined by the Rme Statute. As a lawyer, I have welcmed these imprtant develpments in internatinal criminal law; as Deputy Prsecutr f the ICC fr the past seven years, and as the OTP s fcal pint fr gender issues, I have endeavured t ensure that the gender perspective is always taken int accunt in ur investigatins and prsecutins. These are crimes that have gne un Page: 3 / 6

4 reprted and un punished fr s lng, with s much shame and miscnceptins invlved. It is my belief that the law and judicial prceedings are a pwerful tl t shed light n these crimes, give a vice t the victims and punish their perpetratrs. The law will help t change behaviur. Indeed, the mst striking quality f the pursuit f gender crimes by the ICC t date has been that they are there: their centrality t every prsecutin s far, in a way that clarifies hw the sexual abuse becmes a specific instrumentality in each cnflict. In ur first trial, against Thmas Lubanga Dyil, althugh it was nt charged directly as additinal crimes, but during the curse f the trial, we explained the gender dimensin f the crime f enlisting and cnscripting children under the age f 15 years. We tk nte f the reactins f civil sciety and their preference fr these aspects t be explicitly charged. Sexual and gender crimes were included directly in ur charging in all ur subsequent cases, such as the Katanga/Ngudjl and the Mbarushimana cases. Sexual vilence is nt nly a majr cncern in the DRC; ur decisin t pen an investigatin int the situatin in the Central African Republic represented the first time fr the internatinal criminal justice system t deal with a situatin where the allegatins f sexual crimes far utnumbered the allegatins f killings. This Office als charged the President f the Sudan, Omar Al Bashir, f cmmitting gencide inter alia thrugh the fact that thusands f civilian wmen, belnging primarily t the Fur, Masalit and Zaghawa grups, were subjected t acts f rape by frces f the Gvernment f the Sudan. In sme f ur cases, nt all f the charges f sexual and gender crimes we had requested fr were cnfirmed by the Judges. Indeed, in the case against Jean Pierre Bemba fr instance, we had included sexual vilence and rapes under the cunts f trture and rape, as crimes against humanity and war crimes, as well as utrages upn persnal dignity, in particular humiliating and degrading treatment, as a war crime. The Chamber Page: 4 / 6

5 nly cnfirmed the charges f rape as war crime and crime against humanity. The Office is wrking, including n ur evidence, t ensure that in future cases, all charges f sexual and gender crimes are cnfirmed. Indeed, gender crimes are prminent in ur prsecutins because they are prminent in the cntexts being prsecuted. This nly becmes remarkable against the backdrp f the prir, and still prevalent, nrm f denying their existence, ignring them, shaming their victims, and r defining them in legally imprvable ways. In ther settings, it has been as if there was a tacit agreement t lk the ther way as wmen and children were sexually abused minimizing, trivializing, denigrating, and silencing the victims, destrying their credibility and further vilating their dignity, s that abusers can cntinue unimpeded. The bdy f the ICC s first cases, hwever, signals t the wrld that here, at least, this deal is ff. Addressing such crimes, truly, begins a new era. At the Office f the Prsecutr, in the next years building n the last nine, ur hpe, ur visin, and actually ur plan is t pursue the gender crimes the Rme Statute defines. In rder t stp these crimes we will give victims a vice their wn. By setting an example, tgether, thrugh multi levelled interface, understanding and cperatin, we can and we will transfrm the public respnse t sexual crimes wrldwide, in and utside recgnized znes f cnflict. I wuld like t take this pprtunity t mentin the crucial rle civil sciety plays in this regard; I recgnize here the imprtant wrk f Wmen s Initiatives fr Gender Justice, as well as that f lcal gender grups in situatin cuntries, that prvide smetimes the nly frm f supprt available fr gender crimes victims, wh ften are excluded and shunned frm their cmmunities. During my tenure, I will strengthen the cperatin between the OTP and these grups, in rder t supprt their effrts and cntinue ur effrts t reach ut mre t the victims. Page: 5 / 6

6 We will als cntinue t peridically and cnsistently revisit ur plicies and practices regarding sexual and gender crimes, making sure they are effective and imprving them if needed. The Office will als cntinue t prvide gender related training t its staff, as I mentined previusly, frm investigatrs t prsecutrs, and as freseen in ur Curt wide revised strategy twards victims; training will be adjusted in accrdance with new strategies and experiences. Regarding ur investigatins, we have an bligatin and a duty t fcus ur attentin n sexual and gender vilence. As it can be a challenge t gather evidence f these crimes in sme cntexts, we will cntinue t lk fr innvative methds fr the cllectin f evidence t bring these crimes t Curt in a way that will ensure their prsecutin and will respect and prtect their victims. Finally, the finalizatin f ur OTP s gender plicy is a pririty that I have fr the Office. It is currently in an advanced stage f develpment. Once we have finalised the draft, it will be pen fr cmment frm external actrs, as is the practise f the Office regarding ur plicies. It will als cntribute t prviding clarity, transparency and predictability n ur wrk and ur strategy. In shrt, this Office will make sure that victims f sexual and gender crimes see the crimes they have suffered frm being punished; their perpetratrs being arrested and prevented frm cmmitting additinal crimes. This is a cmmitment that I make as the new incming Prsecutr f the ICC. I hpe t be able t cunt n the supprt f all thse present here tday t cntinue this wrk. Thank yu very much fr yur attentin. Page: 6 / 6

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