Overview by Annelou Aartsen, Research Associate PILPG NL
Highlights:
Call it what it is campaign’ an initiative set up by civil society to create a working definition for sexual violence.
Jihyun Park, a survivor activist from North Korea who shared her personal experiences and thoughts on sexual violence committed in North Korea.
This side event was co-hosted by Australia, the United Kingdom and Women’s Initiatives for Gender Justice. The Panel participating in this side event consisted of Jihyun Park (North Korean women’s Rights Activist), Patricia Sellers (Special Advisor on Gender to the ICC Prosecutor) and Dr. Rosemary Grey (teacher at the University of Sydney).
The Australian Ambassador to the Netherlands, Mr. Matthew Neuhaus, began the event by recalling a personal experience during one of his visits to the North-East of the DRC. In a refugee camp in the far North of the DRC, he asked one of the local women leaders what her main problem was, and she replied that the families living in this area were not able to go down to the river to get water because they would get raped. With this story the Australian Ambassador to the Netherlands wanted to demonstrate that the main issue is that the people who are supposed to be the protectors of crimes of sexual violence, were involved in the commitment of these crimes and nothing has been done about this. According to the Australian Ambassador this is the main challenge we face when dealing with impunity, specifically when dealing with crimes of sexual violence in conflict situations.
Secondly, the floor was given to the British Ambassador to the Netherlands, Mr. Peter Wilson, who articulated that the victims of sexual violence lie at the heart of the UK’s approach. It is about understanding the experience of the individual. This side event should help to broaden our understanding of what this concept of sexual violence is and should center around the ICC, because there is a lot the ICC can do about this. Moreover, Mr. Wilson highlighted that sexual violence is also about the violence that is done to men. He highlighted that everyone should understand the context in which they are operating, something which is incredibly important in order to ensure that the right procedures are put in place to hold people accountable.
Siobhan Hobbs, the moderator of the panel and program director at the Women’s Initiatives for Gender Justice, moved on by formerly launching the 2018 gender report card on the ICC. She said that the Gender report card is a tribute to those who have worked to enable the Rome Statute and the legal framework of the ICC to be what it is today in terms of gender provisions and gender equality. While she acknowledges that the Rome Statute is not perfect, and there is a whole there can be done to support its implementations, Hobbs said the Rome Statute is the most progressive framework that we have today. Next, she moved on by highlighting the goal of this side event’s discussion, namely, to discuss ‘what makes violence sexual’. While sexual violence is often understood as rape, or as the crimes that are listed in the Rome Statute, people’s understanding of what sexual violence is should be expanded.
In order to get the discussion on a defining sexual violence going, Patricia Sellers, the Special Advisor on Gender to the ICC Prosecutor, started off by discussing how the international criminal law system came to conceptualize sexual violence. The Special Advisor on Gender discussed diverse instances in history where sexual violence appeared as an illegality within international humanitarian law. Most of these early instances of illegal sexual violence, occurring already in 1500s and 1700s, were referred to in terms of molestation of persons who are not combatants. For example, the treaties the United States entered into with Prussia, the Netherlands and France in the 1700s, all included phrases such as ‘we will be civilized, we will have respect and shall not molest women’. Through the diverse examples given by Patricia Sellers she illustrated how sexual violence against the non-combatant enemy was illegal. Next, she moves on by highlighting diverse examples of conventions and jurisprudence which prohibited the perpetration of sexual violence against the combatant enemy. Amongst others she referred to the Tokyo judgement which talks about the different forms of rape that were committed against army nurses. Through diverse examples given she demonstrates that there already existed a broad base for the prohibition of sexual violence. Additionally, the Special Advisor on Gender refers to the Additional Protocols 1 and 2, which both reiterate the prohibition of sexual violence independent of your status in war. Through these examples Patricia Sellers illustrated that sexual violence is clearly outlawed under international humanitarian law. However, while there exists a wide prohibition of sexual violence, she found a gap in the law as no such prohibition is titled ‘sexual violence’.
Next speaker at this side event was Dr. Rosemary Grey of the University of Sydney. She commented that the ICC is the first criminal court that expressly recognizes the crime of sexual violence which provides the ICC with great potential. Amongst others, it allows the court to respond to different forms of sexual violence that are experienced by people of any gender anywhere in the world where the ICC has jurisdiction. She moves on by explaining that the crime of sexual violence is entwined in the ICC as a crime against humanity and a war crime. The current definition and the elements of the crimes that need to be demonstrated provide us with understanding of what force means. However, it does not clarify what makes an act sexual in nature. Similarly, within ICC case law there is no clear and consistent answer to the question ‘what makes violence sexual?’. As jurisprudence of the ICC demonstrates, crimes committed, which were considered as crimes of sexual violence by the victims, were not labeled as crimes of sexual violence by the ICC. The ICC would refer to such type of acts as inhuman acts, which are not of a sexual nature.
In response to those earlier cases of the ICC, which failed to label certain acts as acts of sexual violence, the Women’s Initiatives for Gender Justice civil society organization has started a campaign ‘Call it what it is’ which includes a survey, to create a definition of sexual violence. This definition of sexual violence does not seek to bind or restrict the ICC in any way it rather seeks to support the ICC in understanding how the concept of sexual violence is understood across different cultures and different timeframes. The aim is to create a vocabulary and illustrative examples so that the ICC and affected communities can speak in a common language. Thereby, supporting the work of the prosecutor who tries to move forward the crime of sexual violence. It is a way of offering the ICC a definition that is inclusive, culturally sensitive and forward looking.
The third panelist to speak was Jihyun Park, a North Korean activist, who with her story illustrated that there is a lot of sexual violence committed which has not come to the Court’s attention yet. Jihyun Park started of by highlighting that the sexual violence that takes place in North Korea is not unique to North Korea, it takes place in every society. As mentioned by the human rights activist, a survivor of sexual violence herself, sexual violence is often committed by those in powerful positions who misuse their positions. In addition, she mentions that sexual violence takes place in diverse institutions such as prisons and schools. One of the explanations pointed out by Jihyun Park is the status of women which is not considered equal to men. Amongst others, Jihyun Park refers to exploitation, human trafficking and forced abortions as acts of sexual violence taking place in North Korea. Trafficking North Korean girls into pornography is for instance a growing business in China. Additionally, she points out that victims of trafficking are at high risk to sexual and domestic violence and often do not have any access to health or education, which makes them increasingly vulnerable. Another issue referred to by the human activist is the forced abortions that are conducted to prevent ethnical mixing. Moreover, forced abortions are seen as an additional punishment of Korean women who have left North Korea. Furthermore, she highlights the climate of impunity that exists in the political prison camps in North Korea in which guards abuse their positions and are the main perpetrators of sexual violence. In her concluding remarks, Jihyun Park states that “peace cannot be brought to a country that is ruled by the men who hate women”. Additionally, she poses the question whether the leader of North Korea, Kim Jong-Un, is not a candidate for the ICC? She argues that those who are silent but aware about human rights violations happing inside North Korea should be held responsible. Additionally, she poses that North Koreans are entitled to be protected under the universality principle.
After Jihyun Park’s story the floor was given to H.E. Sabine Nölke, the Canadian Ambassador to the Netherlands. She articulated that sexual violence can constitute a war crime in those states bound by the Rome Statute. While welcoming all important developments within the ICC and its fight against sexual violence, she noted that we have not seem enough progress. The international community has sometimes failed to address the acts of sexual violence. Therefore, the ‘call it what it is campaign’ has been developed to create a working definition for sexual violence.
One of the questions posed within the audience was related to the situation of Colombia which is in the process of transnational justice. The question raised was ‘how activist can make the crime of sexual violence more visible to the public?’ The special advisor on gender to the ICC Prosecutor replied to this answer by stating that Colombia has a lot of prosecutors who are dedicated to fight sexual violence. However, the Colombian system is a system where the prosecutor is politically appointed and turned over quite often. While recognizing that it is a question of training and having access to terrain free investigations, it is also a political question. It is about the political will to make sexual violence a priority to execute.
Another question that was posed by the audience was related to the definition of sexual violence and ‘how far and wide’ one could go with the definition of sexual violence? Professor Grey responded to this question by highlighting that there is a difference about interpreting law that already exist and creating new law. Another thing she mentions in relation to this question is to think about what it means to have an act of sexual violence to be prosecutable in the ICC. That act would still have to make the Rome Statute elements of crime.
A third question formulated by the audience was also related to defining sexual violence, and the gravity test, in particular how this would have to consider different cultural context. Since different cultures can have different interpretations of the one definition. Professor Grey answered this by stating that she thinks that it is better to have a definition which can vary from culture to culture, than to have a definition which is narrower and descriptive but is in fact only the perspective of one culture. This would allow the ICC to be more responsive to the various context in which it operates. In relation to the gravity threshold, Professor Grey mentions that removing the gravity threshold would require states parties to do so. Whereas, interpreting an act as an act of sexual nature could be done through a campaign of the civil society, which can subsequently be offered to the Court.