Side Event: 17th Assembly of State Parties | Investigating and Prosecuting for Sexual and Gender Based Crimes at the ICC and Beyond

(co-hosted by Canada and the International Federation for Human Rights (FIDH))

Overview by Eszter Boldis, Research Associate PILPG NL

Highlights: 

  • Even though the Rome Statute includes a wide scope of sexual and gender based crimes to date, there are continued issues in the prosecutions of such crimes, including the difficulties in investigating the crimes and the risks to re-traumatization of victims.

  • Some of these issues could possibly be addressed in the future Crimes against Humanity Convention while others would involve continued outreach to victims and collaboration with civil society.

During this side event on the investigating and prosecuting of sexual and gender based crimes, Amal Nassar, Permanent Representative of the FIDH to the ICC, moderated the panel which included, among others, the Ambassador of Canada, representatives of the Office of the Prosecutor (OTP), and members of civil society.

Ms. Sabine Nolke, Canada’s Ambassador to the Netherlands, remarked that rape, sexual slavery, and forced marriage are still used as a tool in the context of armed conflict and crimes against humanity. These crimes have a long-term impact on communities, yet the crimes are often invisible because victims are silenced by shame and social pressures. Furthermore, unlike some other crimes, it is also difficult to have evidence on these crimes since there are no ‘satellite pictures’ documenting these crimes. Thus, the evidence is rendered only available by the testimonies of victims. Ms. Nolke, along with the other panelists, agrees that the Rome Statute, which encompasses the widest range of sexual violence and gender based crimes to date, is a large step in recognizing and prosecuting these crimes. Yet, the achievements of the Rome Statute should not be seen as an endpoint. 

As part of the event, FIDH launched a report on Investigating and Prosecuting for Sexual and Gender Based Crimes at the ICC and Beyond. This report is a result of a series of semi structured interviews of 42 practitioners and experts from five different continents. Each interview roughly addresses the following question: What are the challenges to investigating and prosecuting sexual violence and gender-based crimes and what progress has been made? Some of the recommendations of the report include further engagement with victims and civil society stakeholders.

There have been various recent developments in the prosecution of sexual violence and gender based crimes. In her 2016 Policy Paper, ICC Prosecutor, Fatou Bensouda, identified these crimes as an important focus for the OTP, stating “The victims of such devastating crimes will not find solace in our words and promises, but in what we manage to deliver in concrete terms.” Inthe past month, the Extraordinary Chamber in the Court of Cambodia convicted two former leaders of the Khmer Rouge of forced marriage. However, there are some continuing difficulties and setbacks. The Bemba acquittal of June 2018 was a setback for victims of sexual violence who participated in the proceedings for the past seven years. In the light of recent events, the availability of reparations for these victims is unlikely. Furthermore, in the Kenyatta case, forced circumcision has been reclassified as other inhumane acts from the initial classification of sexual and gender based offences. According to James Stewart, Deputy Prosecutor at the ICC, this reclassification was an error due to the misunderstanding of culture of the victim, in which circumcision is not usually practiced and is seen as degrading. To this date, although some offenders were charged with sexual crimes, there has been no conviction of sexual and gender based crimes at the ICC.

Patricia Sellers, Special Advisor to the Prosecutor on Gender, identified several “cracks” in the Rome Statute. The most important of these is the lack of inclusion and criminalization of slave trading as a crime against humanity. Furthermore, the Rome Statute does not include slavery and slave trading (as identified in Additional Protocol II) under war crimes. Sellers suggests the inclusion of slave trading in upcoming Crimes Against Humanity Convention and the deletion of sexual slavery as a separate crime, as it is synonymous or coupled with the crime of enslavement.