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<?xml version="1.0" ?> <tei> <teiHeader> <fileDesc xml:id="0"/> </teiHeader> <text xml:lang="en"> <p>As a public member of the United States delegation to the Rome conference 1 , I am deeply<lb/> disappointed that the text of the Statute that was issued by the Chairman on July 17, 1998<lb/> contained jurisdictional provisions that the United States could not accept. After five<lb/> weeks of intense effort at the conference, and years of preparatory work before then, the<lb/> delegation had great and justifiable pride in its contributions to crafting the Statute. The<lb/> United States' commitment to creating an effective International Criminal Court ( " ICC " )<lb/> could not reasonably be doubted, and to have come so close and failed is a profound loss,<lb/> for the United States as well as for the court.<lb/></p> <p>As a feminist, my own particular focus at the Rome conference was on the provisions<lb/> that affect prosecution of crimes against women. As a former prosecutor in The Hague, I<lb/> was also concerned with procedural and other provisions that might ensure that the court<lb/> would be more than a symbolic institution, that it would actually work. It is those provi-<lb/>sions that are the subject of this paper.<lb/></p> <head>Wartime Violence Against Women<lb/></head> <p>Surely no reminder is needed that for centuries women have been victims of sexual assault<lb/> in times of armed conflict, and that their attackers have rarely been effectively prosecuted. 2<lb/> Even at Nuremberg, where rape was enumerated in the charter as a crime against human-<lb/>ity, evidence of rape was presented but was not itself the subject of separate charges or<lb/> noted in the judgments. 3 Except for the less well-known proceedings at Tokyo, the handful<lb/> of other prosecutions of World War II war crimes have been similarly unconcerned about<lb/> sexual assault.<lb/></p> <p>This lack of concern ended in 1992. Reporters of the conflict in Bosnia wrote repeat-<lb/>edly about widespread sexual assaults that appeared to reflect deliberate policy. 4 When the<lb/> United Nations Security Council established the International Criminal Tribunal for the<lb/> Former Yugoslavia, it made clear its concern about the reported sexual assaults 5 , even<lb/> though the substantive law set forth in the Statute it promulgated contained only one pro-<lb/>vision regarding sexual assault. 6 The Office of the Prosecutor at the Tribunal made creative<lb/> use of the Statute, for example charging rapes as criminal conduct under the grave breach<lb/> provisions of the Geneva Conventions that prohibit torture and inhuman treatment. 7 The<lb/> Rwanda Tribunal displayed similar willingness to fit crimes of sexual assault within tradi-<lb/>tional categories, and in one of its first judgments a trial chamber based a conviction for<lb/> genocide in part on the accused's having directed others to commit rapes. 8 Equally signifi-<lb/>cant for the effective prosecution of crimes against women, both ad hoc tribunals have<lb/> women among their judges and in senior positions in their prosecutor's offices, although<lb/> not in numbers that approach equality with men. 9<lb/></p> <p>The ICC Statute is much more explicit. Regarding selection of the 18 judges, the States<lb/> Parties are required to take into account the need within the membership of the Court,<lb/> among other things, for a fair representation of female and male judges, and for judges<lb/> with legal expertise about violence against women. 10 In selecting staff, the Prosecutor and<lb/> Registrar are required to have regard for the same considerations. 11 The Prosecutor is<lb/> required to appoint an adviser with legal expertise about sexual and gender violence. 12<lb/> During the course of investigations the Prosecutor is further required to respect the inter-<lb/>ests and personal circumstances of victims and witnesses, including their gender, and to<lb/> take into particular account crimes of sexual or gender violence. 13 All parts of the court are<lb/> required to take measures to protect witnesses, particularly where the crime involves sex-<lb/>ual or gender violence. 14 The registrar is required to set up a victims and witnesses unit to<lb/> assist witnesses, and to include on the staff persons with expertise in trauma related to<lb/> crimes of sexual violence. 15<lb/></p> <p>Taken together, these provisions leave no doubt that the ICC has a mandate to prose-<lb/>cute crimes of sexual violence. 16 Systemically, every aspect of the composition of the court<lb/> is designed to enhance the likelihood that those crimes will be given the attention they<lb/> deserve. This is indeed a major step forward.<lb/></p> <p>In the substantive parts of the ICC Statute that set forth the particular crimes that will<lb/> be within the ICC's jurisdiction, the Rome conference in many respects stayed close to the<lb/> language traditionally used to describe the acts that constitute the three categories of core<lb/> crimes: genocide, crimes against humanity and war crimes. At the same time, the confer-<lb/>ence was innovative in giving expression to certain principles the delegates considered as<lb/> established. 17<lb/></p> <p>Pursuant to this approach, crimes of sexual violence are set forth explicitly. The acts<lb/> constituting crimes against humanity include " rape, sexual slavery, enforced prostitution,<lb/> forced pregnancy 18 , enforced sterilization, or any other form of sexual violence of compa-<lb/>rable gravity, " 19 as well as persecution against any identifiable group on grounds, among<lb/> others, of gender. 20 War crimes include " rape, sexual slavery, enforced prostitution, forced<lb/> pregnancy, enforced sterilization, or any other form of sexual violence also constituting [in<lb/> the context of international armed conflicts] a grave breach of the Geneva Conventions "<lb/> or, [in the context of internal armed conflicts] " constituting a serious violation of article 3<lb/> common to the four Geneva Conventions. " 21 To the extent creation of an accurate histori-<lb/>cal record and bringing repose for victims by public acknowledgment of their suffering is a<lb/> purpose of the ICC, the ability of the prosecution to bring sexual assault charges under<lb/> these specific provisions, rather than the more generic torture and inhuman treatment<lb/> provisions, is also a major step forward.<lb/></p> <p>Several other provisions of the ICC Statute enhance the likelihood that crimes of vio-<lb/>lence against women will be effectively prosecuted. Crimes against humanity and war<lb/> crimes are not limited to the context of international armed conflict. 22 Since internal con-<lb/>flicts are increasingly frequent, and since violence against women is surely as prevalent in<lb/> internal as in international conflicts, this provision alone has great importance. And the<lb/> ICC is prohibited from making any adverse distinction based on gender, among other cat-<lb/>egories, in the application and interpretation of law. 23<lb/></p> <head>Procedure<lb/></head> <p>The Statute of the Yugoslav Tribunal treated procedural issues in a handful of general arti-<lb/>cles, and left it to the Tribunal judges to develop detailed rules of procedure and evi-<lb/>dence. 24 The judges have revised and refined the rules they first promulgated, to reflect the<lb/> particular issues they have encountered and comments received from interested parties. 25<lb/> The Rome conference adopted a different approach, setting forth detailed procedural pro-<lb/>visions for the ICC in the Statute itself. 26 Remaining details will be covered in Rules of Pro-<lb/> cedure and Evidence, which will be negotiated at the Preparatory Commission to be<lb/> established by the United Nations General Assembly, and adopted by a two-thirds major-<lb/>ity of the Assembly of States Parties. 27<lb/></p> <p>In general, the procedural provisions reflect a mixture of the continental and common<lb/> law criminal justice systems. For example, investigations are conducted and prosecutions<lb/> pursued by the prosecutor, as in common law systems, but a pre-trial chamber of judges<lb/> has considerable supervisory authority, as in many continental law systems. 28 Where their<lb/> personal interests are affected, victims or their representatives may present their views, at<lb/> stages of the proceedings determined by the Court, a feature of many continental sys-<lb/>tems. 29<lb/></p> <p>The procedural provisions themselves are a remarkable accomplishment. From inves-<lb/>tigation through enforcement of sentence, a series of comprehensive articles sets forth<lb/> steps of a criminal prosecution. These provisions should provide a solid foundation for<lb/> the court to do its work. Because these provisions, including those regarding such impor-<lb/>tant and sensitive issues as protection of national security information 30 and cooperation<lb/> of States parties 31 were negotiated, rather than promulgated, States may be more likely to<lb/> support and offer real cooperation to the court.<lb/></p> <head>Problems<lb/></head> <p>Despite the great achievements of the Rome conference, problems remain, and the Statute<lb/> is far from perfect. Regarding the jurisdictional issues that concern the United States, the<lb/> Preparatory Commission may yet be able to make adjustments that would resolve those<lb/> concerns. Other defects may have to wait for correction until seven years after the Statute<lb/> comes into force, 32 if then.<lb/></p> <p>For example, the trial chambers' judgments need not be unanimous. A judgment of<lb/> conviction may be pronounced by two of the three judges who will comprise each trial<lb/> chamber. 33 In effect this entrusts power to determine the verdict, based on such factual<lb/> bases as assessment of witness credibility and analysis of the evidence, to just one person,<lb/> the judge with the swing vote. Unlike questions of law about which judges frequently disa-<lb/>gree without affecting public confidence in their conclusions, failure to agree about the<lb/> factual bases for its judgments may serve to undermine confidence in the ICC. This may<lb/> have profound consequences in the context of the highly contested evidence that will be<lb/> presented in the high profile cases that are expected to be before the court. It would have<lb/> been far more effective, although more expensive, to provide for five judges in each trial<lb/> chamber, and require agreement of at least four of the five judges for conviction.<lb/></p> <p>In defining criminal responsibility, the Rome conference failed to provide criminal<lb/> responsibility for inciting others to commit crimes against humanity and war crimes, in<lb/> effect shielding disseminators of violence-inspiring propaganda from prosecution. 34 Since<lb/> those responsible for such incitement may truly be among the most culpable, for example<lb/> for persuading neighbors to commit terrible crimes against one another, 35 this omission is<lb/> a significant limitation on the court's ability to address the most significant crimes.<lb/></p> <p>Despite these, and other, failings, the ICC Statute is a remarkable accomplishment.<lb/></p> 34. Consistent with the terms of the Genocide Convention, direct and public incitement to genocide is<lb/> punishable by the ICC. Article 25(3)(e).<lb/> 35. The Statutes of the Yugoslav and Rwanda Tribunals do provide for criminal responsibility for instigat-<lb/>ing others to commit the underlying crimes. See Yugoslav Tribunal Article 7(1). In the Nahimana case, the<lb/> Rwanda Tribunal has charged persons responsible for radio broadcasting of exhortations to kill Tutsis with<lb/> instigation to commit crimes against humanity. Prosecutor v. Nahimana, ICTR No. 96-11-T. For the ICC,<lb/> any general incitement provision would have to be precisely framed to avoid infringing on rights to free-<lb/>dom of expression.<lb/> The Making of a Gender-Sensitive International<lb/> Criminal Court<lb/> VALERIE OOSTERVELD*<lb/> The International Criminal Court (ICC) Statute incorporates significant advances in the<lb/> prosecution of crimes of sexual violence, and crimes against women in armed conflict<lb/> more generally. It was not easy to ensure that the Statute reflected the evolution of interna-<lb/>tional humanitarian law with respect to women, but it was extremely important. Crimes<lb/> committed against women in war are traditionally underprosecuted. The International<lb/> Criminal Tribunals for the Former Yugoslavia and Rwanda are slowly reversing the histor-<lb/>ical invisibility, and their decisions provided the basis for ensuring that past mistakes were<lb/> not repeated in the ICC Statute.<lb/> In 1994, the International Law Commission presented a final draft ICC Statute to the<lb/> United Nations General Assembly. 1 This draft was subsequently used as the basis for dis-<lb/>cussions and negotiations at the 1995 ad hoc committee meetings, and at the 1996, 1997<lb/> and 1998 Preparatory Committee (PrepCom) meetings. By the February 1997 PrepCom,<lb/> nongovernmental organizations (NGOs) had become concerned that the draft Statute did </text> </tei>