GENDER: INTEGRATING CRIMES AGAINST WOMEN INTO INTERNATIONAL CRIMINAL LAW

Mohammad Irfan

Abstract


The author identifies the major goals and achievements in the area of recognizing women as full subjects of human rights and eliminating impunity for gender crimes, highlighting the role of non-governmental organizations ("NGO's"). Until the 1990s sexual violence in war was largely invisible, a point illustrated by examples of the "comfort women" in Japan during the 1930s and 1940s and the initial failure to prosecute rape and sexual violence in the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda. Due in a significant measure to the interventions by NGOs, the ad hoc international criminal tribunals have brought gender into mainstream international jurisprudence. For example, the Yugoslavia tribunal has devoted substantial resources to the prosecution of rape and explicitly recognized rape as torture, while the Rwanda tribunal has recognized rape as an act of genocide. Elsewhere, the Statute of the International Criminal Court is a landmark in codifying not only crimes of sexual and gender violence as part of the ICC's jurisdiction, but also in establishing procedures to ensure that these crimes and their victims are properly treated. Working towards this end the Women's Caucus for Gender Justice met with significant opposition. It persisted because of the imperative that sexual violence be seen as part of already recognized forms of violence, such as torture and genocide.


Keywords


Gender; Crimes Against Women; International Criminal Law.

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References


July 1998, UN Doc. No. A/CONF.183/9, 37 I.L.M. 9999 (not entered into force) [hereinafter Rome Statute].

Akayesu, ibid. at paras. 731-32; this indicates that rape and sexual violence may also qualify under art. II(c) of the Genocide Convention, ibid., and art. 2(2)(c) of the ITCR Statute, ibid., as "deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part."

Amicus Curiae Brief on Protective Measures for Victims or Witnesses of Sexual Violence and Other Traumatic Events, Submitted by the Center for Civil and Human Rights, Notre Dame Law School [unpublished]; Amicus Curiae Brief Respecting the Decision and Order of the Tribunal of 16 July 1998 Requesting That the Tribunal Reconsider Its Decision Having Regard to the Rights of Witness A to the Equality, Privacy, and Security of Person and to Representation by Counsel, Submitted by Joanna Birenbaum et al [unpublished].

C. Walsh, "Witness Protection, Gender and the ICTR", online: International Centre for Human Rights and Democratic Development

Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulation concerning the Laws and Customs of War on Land, 18 October 1907, 3 Martens Nouveau Recueil (Ser. 3) 461, art. 46, 187 Consol. T.S. 227 (entered into force 26 January 1910).

For fuller discussion of the history and significance of characterizing rape as torture, see R. Copelon, "Surfacing Gender: Re- Engraving Crimes against Women in Humanitarian Law" (1994) 5 Hastings Women's L.J. 243 at 249-57; D.Q. Thomas & R.E. Regan, "Rape in War: Challenging the Tradition of Impunity" (1994) 14 SAIS Rev. 81; T. Meron, "Rape as a Crime under International Humanitarian Law" (1993) 87 A.J.I.L. 424; D. Blatt, "Recognizing Rape as a Method of Torture" (1992) 19 N.Y.U. Rev. L. & Soc. Change 821.

Fourth World Conference on Women: Beijing Declaration and Platform for Action, 17 October 1995, UN Doc. A/CONF.177/20; see e.g. paras. 132, 224, 142(b), respectively. See also Women's Caucus for Gender Justice, The International Criminal Court: The Beijing Platform IN Action--Putting the ICC on the Beijing 5 Agenda (1999)

Genocide Convention, supra note 32, art. II(d); ICTR Statute, supra note 16, art. 2(2)(d).

J. Green et al., "Affecting the Rules for the Prosecution of Rape and Other Gender-Based Violence before the International Criminal Tribunal for the Former Yugoslavia: A Feminist Proposal and Critique" (1994) 5 Hastings Women's L.J. 171.

Letter from Justice R. Goldstone, Prosecutor, UN International Criminal Tribunals for the Former Yugoslavia and Rwanda, to Prof. R. Copelon, Professor of Law and Director, International Women's Human Rights Law Clinic, City University of New York (8 September 1995) [on file with author], cited in Shattered Lives, supra note 15 at

P.V. Sellers, "The Context of Sexual Violence: Sexual Violence as Violations of International Humanitarian Law" in G.K. McDonald & O. Smaak- Goldman, eds., Substantive and Procedural Aspects of International Criminal Law, vol. 1 (The Hague: Kluwer Law International, 2017) 263.

Prosecutor v. Anto Furundzija, Judgment, ICTY Trial Chamber II (10 December 1998), Case. No. IT-95-17/1 at paras. 163, 266 (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber II), online: United Nations (date accessed: 24 September 2017) [hereinafter Furundzija].

Prosecutor v. Dusko Tadic, Decision of the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses, ICTY Trial Chamber (10 August 1995), Case No. IT-94-1 (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber)

Prosecutor v. Gagovic et al., Indictment, ICTY Trial Chamber (26 June 1996), Case No. IT-96-23/2 (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber), online: United Nations (date accessed: 27 September 2017); see Counts 1, 3, 4, incorporating the facts alleged in paras. 5.3-5.7, for reference to rape as torture in the context of interrogation (ibid.); see also Counts 13, 15, 16, incorporating the facts alleged in paras. 6.6-6.11, for reference to rape as torture, in the context of interrogation. See also Prosecutor v. Gojko Jankovic et al., Amended Indictment, ICTY Trial Chamber (7 October 1999), Case No. IT-96-23-PT (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber), online: United Nations (date accessed: 4 October 2017); see Counts 45-48, incorporating the facts alleged in paras 8.1-8.7, for reference to enslavement. This followed upon the landmark decision of the Inter-American Commission on Human Rights in its Report on the Situation of Human Rights in Haiti to recognize rape in non-prison or interrogation contexts as a form of torture (OR OEA/Ser.L/V/11.88/Doc. 10, rev. (1995) at paras. 133, 134); see also Aydin v. Turkey, App. No. 23178/94 (1997), 25 Eur. H.R. Rep. 251 at 295-96.

Prosecutor v. Jean Paul Akayesu, Amended Indictment, ICTR Trial Chamber (June 1997), Case No. ICTR-96-4-1, Indictment Counts 1, 2, 13-15 (International Criminal Tribunal for Rwanda, Trial Chamber), online: International Criminal Tribunal for Rwanda (date accessed: 13 September 2017).

Prosecutor v. Zejnil Delalic, Decision on the Prosecution's Motion for the Redaction of the Public Record, ICTY Trial Chamber (5 June 1997), Case No. IT-96-21

Prosecutor v. Zejnil Delalic, Judgment, ICTY Trial Chamber II (16 November 1998), Case No. IT-96-21 at paras. 480-96 (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber II), online: United Nations (date accessed: 24 September 2017).

R. Copelon, "Recognizing the Egregious in the Everyday: Domestic Violence as Torture" (1994) 25 Col. Hum. Rts. L. Rev. 291.

R. Copelon, F. Gaer & J. Green, Amicus Memorandum Re: Application for Deferral by the Republic of Germany in the Matter of Dusko Tadic also known by the Names Dusan "Dule" Tadic [unpublished].

Supra note 14; Report of the Secretary-General Pursuant to Paragraph 2 of the Security Council Resolution 808, UN SCOR, 48th Sess., UN Doc. S/25704 (1993) 10 at para. 40.

The Women's Caucus is now known as the Women's Caucus for Gender Justice in recognition of the fact that the International Criminal Court [[[hereinafter ICC] is only one mechanism of gender justice. The caucus can be contacted through its Web site: .

U. Dolgopol, "Rape as a War Crime--Mythology and History" in I.L. Sajor, ed., Common Grounds: Violence against Women in War and Armed Conflict Situations (Asian Center for Women's Human Rights, 1998) 122.

World Conference on Human Rights: Vienna Declaration and Programme of Action, 12 July 1993, UN Doc. A/CONF.157/23 at paras. 18, 28-30.

Y. Tanaka, "Rape and War: The Japanese Experience" in Sajor, supra note 10, 148 at 165-66; Yoshiaki, ibid. at 49.

Y. Yoshiaki, Comfort Woman: Sexual Slavery in the Japanese Military during World War II, trans. S. O'Brien (New York: Columbia University Press, 1995).




DOI: http://dx.doi.org/10.26532/jph.v5i1.2998

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