Gender crimes as war crimes: integrating crimes against women into international criminal law.

• Author: Copelon, Rhonda
• Position: Hate, Genocide and Human Rights Fifty Years Later: What Have We Learned? What Must We Do ?

The author identifies the major goals and achievements in file 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 file 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 file 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 file prosecution of rape and explicitly recognized rape as torture, while file 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 file 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.

L'auteur fait etat des principaux objectifs et accomplissements dans le domaine de la reconnaissance des femmes comme titulaires a part entiere des droits internationaux de la personne et de l'elimination de l'impunite pour les crimes a caractere sexiste (gender crimes), en accordant une importance particuliere au role des organisations non-gouvernementales (ONG). Jusqu'aux annees 1990, la violence sexuelle lors des conflits armes restait largement invisible, par exemple dans le cas de la prostitution forcee imposee par les forces japonaises dans les annees 1930 et 1940 et dans celui des viols et de la violence sexuelle, initialement ignores par les tribunaux internationaux ad hoc pour le Rwanda et l'ex-Yougoslavie. Grace, en grande partie, aux efforts des ONG, ces tribunaux ont toutefois introduit ces questions dans la jurisprudence internationale. Par exemple, le Tribunal penal pour l'ex-Yougoslavie a reconnu le viol comme une forme de torture et consacre des ressources significatives a intenter des poursuites pour ce crime. Le Statut de la Cour penale internationale (CPI) constitue par ailleurs un point tournant, en ce qu'il codifie non seulement les crimes de nature sexuelle et les integre a la competence de la Cour, mais etablit egalement des procedures visant a ameliorer le traitement de ces crimes et de leurs victimes. Le caucus des femmes de la CPI a toutefois rencontre une forte opposition a la realisation de ces fins ; il persista toutefois dans ses demandes en raison de la necessite de voir la violence sexuelle etre reconnue comme partie integrante des formes de violence deja ctiminalisees, tels la torture et le genocide.

Introduction

1. The Traditional Approach: Past and Present

   Il. Sexual Slavery: The "Comfort" Women

3. Rape and Genocide in Rwanda: Invisibility and Inclusion

4. Engendering International Jurisprudence: The ICTY

5. The International Criminal Court: Codifying Gender Justice

   Conclusion: Towards a Holistic Gender-Inclusive Approach

   Introduction

   Let me begin by saying that I am moved and honoured to participate in this conference along with so many committed scholars and agents of change--non-governmental and intergovernmental. It is also important that there are so many students here, as you are the ultimate repositories of memory, as well as the change agents of the next fifty years. Likewise, I feel very privileged to be engaged in the process of ending impunity for gender crimes along with students and attorneys-in-residence from other countries at the International Women's Human Rights Law Clinic ("IWHR"), which is part of CUNY's [City University of New York] clinical programs. IWHR has also been serving as the Legal Secretariat to the Women's Caucus for Gender Justice in the International Criminal Court,(1) which has, for the past two and a half years, convened an ever-broadening international delegation of feminist attorneys and advocates to bring a gender perspective into the United Nations negotiations of the ICC. The task of the Legal Secretariat has involved researching, vetring with out participants and supporters, and preparing the caucus's positions for each negotiating session. This has been an opportunity to work intensely and consistently with, and learn from, an extraordinary group of creative, committed, and feisty women from around the world, as well as to codify a gender-inclusive approach to international justice.

   The Women's Caucus for Gender Justice is also heir to a process of women's caucuses, each one created in relation to the recent series of UN conferences to introduce the issue of women and gender. The first task was to write women into human rights at the 1993 Vienna Conference on Human Rights, and then to incorporate a women's human rights framework in, and thereby transform, the consensus documents that emerged from the 1994 International Conference on Population and Development in Cairo, the 1995 World Summit on Social Development, and the 1995 Fourth World Conference on Women in Beijing. For example, the Vienna document condemned "systematic rape", and called for the elimination of violence and discrimination against women in public and private life as a priority matter, as well as the mainstreaming of gender in the human rights system. (2) The Beijing Declaration and Platform for Action elaborated on the principle that "women's rights are human rights"; named, among others, "rape, including systematic tape, sexual slavery and forced pregancy" as particularly egregious humanitarian law violations; and called for gender balance among judges and other personnel in judicial institutions, including the ad hoc tribunals. (3)

   The gains of which I will speak today are the product of all these initiatives, which were successful because they emanated from a global mobilization of women, asserting that women's rights are human rights, that human rights (i.e. political, civil, social, and economic rights and the right to women-and human-centred sustainable development) are indivisible, and that impunity for gender crimes and acceptance of discrimination must end. Through mobilization, women's movements have become a force to be reckoned with internationally, despite the desperate and concerted efforts of right wing religious forces to block our progress and the reluctance of others to accept or recognize the need to make gender-inclusiveness a priority. The interrelationship between mobilization at every level and international legal change exemplifies the basic principle that human rights, like law itself, are not autonomous, but rise and fall based on the course and strength of peoples' movements and the popular and political pressure and cultural change they generate.

   This last decade has indeed been historic in that there has been significant progress in transforming the discourse on a policy level. In the arena of international criminal law, there has been significant progress in eliminating the privatization of, and impunity for, gender crimes. For the first time, there have been steps to recognize women as full subjects of human rights and international criminal justice. Irwin Cotler told me that he was torn between placing me on this panel or the next one on the revolution in international criminal law, and suggested that I should declare myself part of both. I am happy to be the bridge, as I believe that gender justice--which is among the most vehemently resisted aspects of international criminal law--is both profoundly revolutionary and one of the ultimate tests of universal justice. In my brief remarks today, I will identify the major goals and achievements in this area at the same time as I highlight the role of NGOs in the process of legal change-making, a subject too often neglected in academic settings.

1. The Traditional Approach: Past and Present

   Before the 1990s, sexual violence in war was, with rare exception, largely invisible. If rot invisible, it was trivialized; if not trivialized, it was considered a private matter or justified as an inevitable by-product of war, the necessary reward for the fighting men. The Leiber Code, drafted to regulate the Union army during the America, Civil War, identified rape as a capital offence. Otherwise, if condemned, as rape was in the Hague Convention of 1907 and the Geneva Conventions, it was implicitly so, categorized as an offence against "family honour and rights" (4) or as "outrages against personal dignity" or "humiliating and degrading treatment". (5) The Fourth Geneva Convention called for "protect[ion] against [rape as an] ... attack on their honour," (6) but rape was not treated as violence, and was therefore not named in the list of "grave breaches" subject to the universal obligation to prosecute. (7) In 1977 the Protocols to the Geneva Conventions mentioned "rape, forced prostitution and any other form of indecent assault" but only as "humiliating and degrading treatment", (8) a characterization that reinforced the secondary importance as well as the shame and stigma of the victimized women. The offence was against male dignity and honour, or national or ethnic honour. In this scenario, women were the object of a shaming attack, the property or objects of others, needing protection perhaps, but not the subjects of rights. Two examples illustrate this point, one from over fifty years ago, one from today.

2. Sexual Slavery: The "Comfort" Women

   As my first example, both the post-World War II International Military Tribunals failed to adequately prosecute tape and sexual violence...