Sexual and Gender-Based Crimes
Observations on the ICC Office of the Prosecutor
One metric by which the success or failure of the International Criminal Court (ICC) has often been measured is that of its record regarding sexual and gender-based crimes (SGBCs). This is due in large part to faithful monitoring by civil society groups like the Women’s Initiatives for Gender Justice and FIDH as well as scholars like Valerie Oosterveld, Rosemary Grey, and even, at times, myself. However, it is also fair and important to acknowledge areas of encouraging progress as well as the degree to which the Office of the Prosecutor (OTP) itself engages in self-reflection on its performance with respect to bringing SGBCs to the fore and the internal efforts it has made in recent years to improve that performance.
This post is divided into two thematic areas: first, recent progress related to the SGBC-related cases and OTP practice; second, emerging conversations and challenges. I share these thoughts not in my capacity as the ICC Prosecutor’s Special Adviser on Sexual Violence in Conflict, but as a practitioner and academic who has for years studied the Court’s handling of SGBCs and ways to strengthen OTP’s investigations, prosecution, and survivor engagement. The information I cite is publicly available; the views I express are my own.
Recent Progress: Convictions, Charging and Operations
Three areas of encouraging updates with respect to handling SGBCs are in terms of convictions, charging and OTP operations.
In terms of convictions for SGBCs, we have recently seen exciting breakthroughs at the ICC. After the 2018 reversal of Jean-Pierre Bemba Gombo’s 2016 conviction for rape as both a war crime and crime against humanity (captured by Dianne Amman here, Leila Sadat here, and Alex Whiting here), the ICC has finally rendered its first ‘final’ conviction for SGBCs. In 2019, Bosco Ntaganda was convicted of 18 counts of war crimes and crimes against humanity, including rape and sexual slavery committed against male and female civilians as well as his own child soldiers in the Democratic Republic of the Congo. The conviction was upheld on appeal in 2021. In 2020, the OTP secured another victory: Dominic Ongwen was convicted of multiple SGBCs committed while he was a commander in the Lord’s Resistance Army in Uganda (July 2002 – December 2005). This historic nature of the charges and conviction is discussed below.
One area of concern often raised with respect to SGBCs is limited or delayed charging. One thinks immediately of the Court’s very first and much-fabled Lubanga case, in which sexual crimes were decried by then-Prosecutor Ocampo but ultimately never included in the charges, despite evidence of sexual violence committed in the context of child soldier conscription. Since then, it is also true that SGBCs have frequently been missing from the original charges and added later, as in Ntaganda and the Ongwen case. However, after growing implementation of OTP’s public Policy Paper on Sexual and Gender-based Crimes (2014) and issuance of additional internal guidance on the conduct of situational gender analysis, we see a more consistent effort to consider SGBCs at the earliest stages of examination and investigation. This has led to more consistent charging of SGBCs where evidence indicates their commission: According to a 2021 report from the Women’s Initiatives for Gender Justice and FIDH, each of the 14 investigations Prosecutor Khan inherited from former Prosecutor Bensouda included SGBC charges, except for that of Palestine. Since Khan has taken office, attention and commitment to investigating and charging SGBCs has continued to deepen.
Also, as importantly, the scope of charging has widened considerably in recent years. Despite the impressive and oft-cited range of SGBCs anticipated in the Rome Statute, initial charging of SGBCs early in the ICC’s history was narrow. For the better part of the Court’s existence, SGBC charges – where they were lodged at all – focused primarily on rape and sexual slavery as both war crimes and crimes against humanity, with occasional inclusion of charges like ‘outrages upon personal dignity’ as a war crime and ‘other inhumane acts’ as a crime against humanity. In recent years, however, the OTP has flexed other provisions of the Rome Statute. For example, the Ongwen case saw the first-ever time forced pregnancy was charged as a standalone crime against humanity under Art. 7(1)(g) along with forced marriage as an ‘other inhumane act’ as a crime against humanity under Art. 7(1)(k) – sustaining the first-ever convictions for these crimes at the ICC. The OTP has also levied its first charges of gender persecution as a crime against humanity of ‘other inhumane act’ in the current Al-Hassan case, along with a host of other SGBCs. Despite a conservative start, we have in recent years seen more expansive charging of SGBCs by the OTP, drawing from across Articles 7(1) and 8(2) of the Rome Statute in acknowledgment that conflict-related sexual violence manifests in multiple ways, far beyond rape alone.
This dedication to including SGBCs at the earliest stages of examination and investigation is a critical development at the OTP in recent years, as is the effort to use Rome Statute provisions more expansively to better capture a wide range of gendered violence. Confirmation of these charges by the pre-trial chamber is another matter entirely, of course (eg, see Grey, Oosterveld, and Orsini’s early cautions re: Yekatom and Ngaïssona charges here and here), and the topic for another blogpost.
There are a few operational updates of interest, with respect to the OTP’s commitment to pursuing accountability for SGBCs. In terms of expertise, in June 2022, the Prosecutor appointed Dianne Luping as the new head of the Gender and Children Unit (GCU). Luping has nearly three decades of experience as an international crimes investigator, trial lawyer, and appeals lawyer, with specific expertise on gender-based crimes. In addition, the Prosecutor’s appointment of multiple Special Advisers with diverse areas of expertise relevant to SGBCs is a new and exciting development. So far, Special Advisers on Gender Persecution (Lisa Davis), Crimes Affecting Children (Véronique Aubert), Slavery Crimes (Patricia Viseur Sellers), and Sexual Violence in Conflict (yours truly) have already been collaborating to guide casework and policies with multiple, complementary lenses. On a related note, the OTP has continued its efforts to develop clear guidance and policies relevant to the investigation and prosecution of SGBCs. Former Prosecutor Bensouda had made it a priority to issue a Policy Paper on Sexual and Gender-based Crimes in 2014, followed swiftly by a Policy Paper on Children in 2016. The OTP has also developed an internal note to guide investigators and prosecutors in conducting a situation and case gender analysis. These guidance documents are rich. Their implementation is worth close review, evaluation, and strengthening. Now, under the leadership of Special Adviser Lisa Davis and with the support of several other internal and external experts, the OTP is developing a long-awaited Policy Paper on Gender Persecution. Public consultation has been rich and iterative, with numerous practitioners, academics, and civil society organizations providing input.
At the same time, the crisis in Ukraine has highlighted the need to provide diverse human rights defenders with guidance about documentation standards required for court admissibility. At the Ukraine Accountability Conference this week, the Prosecutor referenced the joint development of Guidelines on Documentation Efforts by Civil Society Actors with the Eurojust Genocide Network. The Guidelines include sections relevant to the documentation of SGBCs, emphasizing confidentiality and a survivor-centered approach, particularly for especially vulnerable individuals. They are being finalized at this time and will be released shortly.
On the Horizon
Building on progress thus far, the OTP will need to firm up good practice with respect to SGBC investigations and prosecution while also tackling emergent issues. At the most fundamental level, these include adopting a meaningful and systematic approach to gender analysis and accounting for intersectional identities and systems of oppression that motivate atrocity crimes at all. This intersectional understanding is critical and will ideally benefit from close consultation with local partners as well as other experts from a wide range of disciplines such as history, sociology, psychology, public health, and social work. In addition, different Special Advisers have flagged key concerns and initiatives for OTP to take on going forward. For example, Véronique Aubert, Special Adviser for Crimes Affecting Children, highlights the need to disaggregate the concept and categorization of “children,” who are not a monolithic group and who have dramatically distinct experiences and needs when it comes to atrocity crimes. Similarly, Special Adviser for Slavery Crimes, Patricia Viseur Sellers, is raising reflection on the concept of “sexual slavery” as provided in the Rome Statute and replicated elsewhere. As she has written with Jocelyn Getgen Kestenbaum, sexual violence and abuse of sexual integrity has always been part and parcel of slavery – so the term and provision of “sexual slavery” is unnecessary, subsumed by “slavery” itself. Finally, as the OTP deepens its approach to digital evidence, it will continue to grapple with ways to integrate open source information in the investigation of SGBCs in particular – a question that has arisen in Syria, Ethiopia, and Ukraine, where massive amounts of citizen video and social media are generated by witnesses to atrocity crimes. Alexa Koenig and Ulic Egan recently addressed the potential relevance (and risks) of open source information for SGBC investigations here.
In short, while challenges persist, significant progress has been made on SGBCs since the establishment of the ICC. At least as far as the OTP is concerned, there is a clear commitment to strengthen its analytical and operational approach to SGBCs as it moves into the next phase of the Court’s evolution.