The Politics of Gender Justice at the ICC: Legacies and Legitimacy

The Rome Statute of the International Criminal Court provides the most advanced articulation ever of gender justice under international law. In designing this aspect of the Rome Statute, states were influenced by the Women’s Caucus for Gender Justice, a dynamic international feminist advocacy network who used the creation of the Court as an opportunity to challenge the existing gender biases of the law and ensure the (mostly negative) lessons from the existing tribunals for Rwanda (ICTR) and the former Yugoslavia (ICTY) were not repeated at the ICC.

The pioneering gender justice mandate of the Rome Statute has three core elements. The first element relates to recognition of a range of sexual and gender crimes commonly, but not exclusively, experienced by women in conflict settings that had never before been treated with equal gravity to other war crimes or crimes against humanity. The second element relates to the provision for fair representation of women on the bench, and of experts in sexual and gender based violence across all the organs of the Court. The third element relates to redistribution through the ICC’s innovative reparations and assistance mandate, and administered via the Trust Fund for Victims. Another unique aspect of the Statute – and one that has its own underlying gender dimensions – is the complementarity framework, ensuring that states maintain jurisdiction over international crimes unless they demonstrate an inability or unwillingness to do so.

With these provisions, states parties established a potentially ground-breaking Court, capable of overturning some of embedded gender legacies of the law. The question raised in The Politics of Gender Justice at the International Criminal Court: Legacies and Legitimacy is how well in its early years has the ICC reached this potential? And, where the Court has missed the mark, what injury has it caused to its legitimacy with its key gender justice constituency?

Gender Justice Outcomes: Recognition; Representation and Redistribution

The argument presented in this book is that in its infancy, the ICC has produced a mixed record in terms of its gender outcomes, and that these outcomes vary across the three elements of its gender mandate. By far the most disappointing element is the one advocates worked hardest to secure in the design phase – improved recognition of gender and sexual crimes under international law. At the ICC, poor prosecution decisions, weak evidence, and conservative judging have combined so that by 2016 there has been just one successful sexual and gender based prosecution – in Bemba – a case which considered a much narrower range of charges than originally sought. In other cases, sexual and gender based charges have either: never been laid, despite extensive evidence of these crimes; were poorly pleaded; met with a higher degree of scrutiny than other charges; or, failed to be recognised by the bench – even where they included similar elements to crimes that had been successfully tried in other international tribunals. To date the Court is yet to adjudicate on the crime of gender persecution, an inventive aspect of the Rome Statute.

In contrast to the recognition element, some headway has been made in relation to representation, especially in terms of including a ‘fair’ representation of women on the bench. Indeed, after the 2013 Assembly of States Parties judicial elections, women judges comprised fifty seven per cent of the bench. This was an outstanding result given the historic pattern of low numbers of women in international tribunals as well as national courts.  However, the subsequent elections have seen these numbers fall back sharply, to around thirty per cent, more closely aligned with the usual tolerance threshold for women’s representation in legal and political settings. While the presence of women on the bench sends an important signal about women’s capacity to adjudicate on matters of international significance, it does not guarantee more sensitive judging on sexual and gender based violence issues, and so it has proven to be the case at the ICC. Further, statutory provisions to place sexual and gender based violence specialists across the Court have not been fully implemented. The trend has been towards few, non-permanent or unfilled gender expert appointments, making it difficult to address the needs of women victims and those experiencing gender and sexual violence crimes.

There have been some interesting developments in terms of redistribution. Where the Trust Fund for Victims (TFV) has been active via its assistance mandate in situation countries, careful and close attention has been paid to gender justice initiatives. This has included ex-girl solider education programs, reunification strategies for girl and women soldiers and children born of conflict-related rape, and targeted micro-finance schemes for women and men. The outcomes in regard to reparations are much less advanced. Indeed, the ICC’s reparations mandate is emerging as a major headache for the Court, and arguably one that seriously threatens its ongoing legitimacy with its gender justice constituency.

The Lubanga case illustrates the problem with reparations all too well. Four years after the Court handed down its first verdict in Lubanga, it is still struggling to finalise the associated reparations process. A significant part of the problem concerns the cascade effect of poor gender justice decision-making at the commencement of proceedings when the then Prosecutor, Luis Moreno-Ocampo, declined to include charges of sexual and gender based violence. Arguments made by the trial judges, the TFV and advocates such as the Women’s Initiatives for Gender Justice among others, about the need to include victims of sexual and gender based in the reparations, have been successfully countered in appeal by the Defence, contributing to the frustratingly slow process. Regardless of the final outcome, which still looks to be some way off, the very fact of that the reparations process has taken so long profoundly undermines the ‘do no harm’ principle upon which the ICC’s reparations principles are based. The delay has the potential to harm all victims of Lubanga’s crimes, but especially those of sexual and gender based violence whose interests have been marginalised throughout the entire case, and who face a particular risk of exposure to reprisals. Signs are that the reparation process in the Katanga case – where the verdict was handed down in 2014 – is moving equally slowly.

Gender Justice and Complementarity

As my co-authors Rosemary Grey and Emily Waller and I have shown, the ICC’s complementarity regime has also produced distinct, negative, gender outcomes. At the negotiating stage, states parties rejected arguments to include gender-specific rules in the complementarity provisions; negotiators suggested that giving the ICC the authority to assess the gender justice status of state laws as a step too far into the realm of state sovereignty. Without a formal gender justice rule to guide it, the Office of the Prosecutor which is responsible for preliminary investigations, appears to have paid inadequate attention to sexual and gender based crimes in its preliminary investigations to determine state action. The result has been an ongoing impunity gap in this area.

Gender Justice and Legitimacy

Overall, The Politics of Gender Justice at the ICC suggests that at this point in time, negative gender justice outcomes at the ICC  – in terms of a poor prosecution record, inadequate gender expertise, unresolved reparations and complementarity gaps  – outweigh the positive. This gap between the promise and the practice of gender justice has tested the ICC’s gender justice constituency belief in the Court’s legitimacy. These actors – who include feminist academics, legal advocates, and victims groups – have expressed concern about the ICC’s direction and capacity to secure and strengthen gender justice under the law. There have been some particular ‘crisis’ moments including the Lubanga and Katanga sentencing and verdict decisions, and a surprising decision in the latter case by the Prosecutor not to mount an appeal on gender grounds. Some have taken these instances as evidence that despite the trailblazing gender justice provisions of the statute, nothing has really changed; the gender legacies of the law appear as entrenched as ever.

However, there have been other ‘small wins’ and key interventions that counterbalance these outcomes and send a positive signal to the ICC’s gender justice community, at least enough to encourage many of them to maintain the struggle. Arguably the most important development came with the election of the second Prosecutor Fatou Bensouda, who entered the office with a commitment to strengthen gender justice accountability. True to her word, under Bensouda, the Office of the Prosecutor has made gender justice a priority, including through the development of a wide-ranging gender policy, which seeks to address many of the shortcomings preventing successful gender-based prosecutions and giving much greater attention to sexual and gender crimes in preliminary investigations. The Bemba verdict on Prosecutor Bensouda’s watch has been a significant ‘win’, despite the many limitations of that trial. A second important intervention came via Judge Odio Benito dissent in the verdict and sentencing in Lubanga. While her decision did little to alter the outcome of this case, Judge Benito’s important arguments about the need to consider the gender dimensions of child soldiers crimes have been reflected in charges in the Ntaganda case, and could yet prove influential.

As the early years of the ICC has shown, overturning the deeply embedded gender legacies of international law is no easy task. Even with the best rules in the world, the actors responsible for implementing these rules -prosecutors, judges, lawyers – sometimes work to resist change or more benignly, too easily forget ‘the new’ and remember ‘the old’. To realize its potential, and maintain its legitimacy in the eyes of its core gender justice constituency, the ICC must now redouble its efforts through gender-sensitive investigations, the collation of convincing evidence, targeted charges, bold judging, and adequate financing. External pressure from its committed gender justice constituency will be essential to securing these requirements. The closer the alignment between the ICC’s gender justice rules and practices, the stronger will be its foundations and the more robust its legitimacy. If past experiences are a window into the future, this alignment will not come easily, and it is likely to arrive in small, contentious steps. But the effort will be worth it if it results in a more complete understanding of, and accountability for, the consequences of war for women and girls and men and boys.