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    ‘International courts failing on gender-based crimes’

    December 13, 2021

    ‘The case against Dominic Ongwen failed to include sexual crimes against men, reflecting gendered assumptions about who can be victims of these crimes’

    GLOBAL concerns continue to grow over the continued use of sexual violence in conflicts despite the establishment of international criminal courts that deal with such cases.

    In November, 12 governments – including those of Liberia, the UK, Canada, New Zealand, Indonesia and Hungary – issued a joint statement on preventing sexual-based violence in wars.

    They said the scale of such violence “is appalling”.

    The governments added: “In conflicts around the world women and girls continue to face horrific sexual violence.

    “Progress has been made to support survivors and strengthen accountability, but sexual violence continues to be used in conflict.

    “We need a stronger international response for all affected by sexual violence in conflict, the vast majority of whom are women and girls,” they said.

    The governments – which also included Australia, Czech Republic, Greece, Malta, Latvia and Lithuania – condemned the use of sexual violence and rape “as weapons of war”, adding that this was “akin to chemical weapons”.

    The statement continued: “We are determined to strengthen the international response and build a new consensus to prevent these atrocities, exploring all options for further international action, including the possibility of a new international convention.

    “Together, we will support survivors, hold the perpetrators to account and put an end to these heinous acts,” it added.

    Proper treatment of crimes of sexual and gender-based violence was the topic of discussion during a virtual side event at the 20th Assembly of States Parties (ASP) of the International Criminal Court (ICC), which ended in The Hague at the weekend.

    Gender-Sensitive Judging in International Criminal Courts was co-hosted by Africa Legal Aid (AFLA), Uganda, Australia and The Netherlands.

    One of the speakers was Gabrielle Louise McIntyre, Chairperson of the Women’s Initiatives for Gender Justice, an advocacy group that lobbies the ICC on gender-related matters.

    Speaking from Seychelles, Ms McIntyre, who is also Chairperson of the country’s Truth, Reconciliation and National Unity Commission, said: “…none of the provisions of the ICC’s regulatory framework guarantee that the Court will ensure justice with regards to crimes of wartime sexual violence.” 

    She said this could be seen in the “initial failures on the part of the ICC Prosecutor to include charges when evidence of sexual and gender-based violence was present or to adduce sufficient evidence to support charges of sexual and gender-based violence when brought”.

    Ms McIntyre added: “These failings appear partly indicative of latent gendered assumptions about the lesser importance of sexual violence crimes but also signify victim reluctance to participate in formal justice processes.

    “Moreover, some of the ICC’s judicial rulings have propelled outmoded understandings of sexual and gender-based crimes, signalling a lack of understanding of the drivers of these crimes and resulting in the perpetuation of stereotypes about sexual violence.”

    Ms McIntyre said that such decisions had been made at the ICC “despite relative gender balance on the bench, underscoring that the solution is not simply adding more women to the mix – gender consciousness is required”.

    She said that this was not to suggest there had been “no significant progress in the treatment of these crimes at the ICC”.

    She cited the trial of Dominic Ongwen a Ugandan rebel commander, but argued that the failure to properly investigate and include sexual and gender-based crimes against men in that case “reflects gendered assumptions about who can be victims of these crimes”.

    Ms McIntyre added: “But the guarantee of proper treatment of crimes of sexual and gender-based violence still appears to remain a fragile proposition more than 20 years after the promises of [the Rome Statute that established the ICC].”

    Evelyn Ankumah, Executive Director of AFLA, said: “Improved gender dynamics in international courts and tribunals and gender-sensitive adjudication, will advance full and equal participation of women…thereby ensuring a more inclusive and impartial justice system.

    “To ensure that the administration of justice is approached with a gender-sensitive lens that provides safe space for women, is actually not the work of judges or female judges alone.

    “It should involve all stakeholders – both internal and external actors,” Ms Ankumah added

    Judge Althea Alexis-Windsor of the ICC said that “it may appear that gender-based targeting was incidental and opportunistic”.

    “However, history has shown that gender-based targeting, even in, or especially in times of conflict, can be purposeful and specific,” she added. 

    Another ICC Judge, Socorro Flores, said women and girls “face structural discrimination during their lives”.

    She said that this “also affects the way justice is delivered”. 

    Judge Flores continued: “The invisible patriarchal stereotypes and social constructions, generate inherent biases in justice mechanisms.

    “Judges all over the world, no matter their gender, do not escape social constructions.

    “They are not immune to stereotypes and patriarchal attitudes. 

    “Discrimination is so normalised that sometimes we are not able to see it before our eyes. “That is why gender sensitivity training becomes extremely important for all judges,” she added.

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