Welcome back to our course. In this second week, our focus will be on international criminal law provisions addressing sexual violence and gender- based crimes committed in situations of armed conflict or widespread or systematic attacks against civilians. In this context, and I quote now, article 7.2 of the ICC statute,
concerning crimes against humanity: Rape, enforced prostitution, sexual slavery, forced pregnancy, and forced sterilization, or any other form of sexual violence of comparable gravity affect individuals, and in particular women. Also torture can be committed in this context and genocide can be committed through forms of sexual violence. Also males actually can be victims of this kind of gender-based violence. But of course, by far, women are the most common victims of these occurrences, and males are, by far, the most numerous perpetrators. So the aim of this week is to identify norms and practices that have helped to fight sexual and gender-based violence in these situations.
Reference will be made to the ICC statute, in particular, and to the strategies and policies adopted by the two prosecutors that have served so far in the ICC, who are Luis Moreno-Ocampo and Fatou Bensouda. So the relevance of sexual violence as a specific strategy and a weapon to be used in situations of organized violence or conflict, armed conflict emerged only recently. Only recently also emerged the idea that sexual violence against women in the context of these conflicts was undesirable, but basically unavoidable byproduct of war. The ICC statute has marked a shift in this field.
It was made possible thanks to the previous work of the two ad hoc tribunals that were established in 1993 and 1994 to– in prosecute, investigate, and adjudicate the criminal cases connected with the war in the former Yugoslavia and genocide in Rwanda. In the ICC statute, several forms of sexual violence are explicitly considered as material and mental elements of the war crimes or crimes against humanity. And they are also a possible materialization of the crime of genocide. Rapes and other forms of sexual violence are no longer–should no longer be condoned or tolerated.
Along with this improvement in the definition of crimes, in the conceptualizations of this crime, there are being also developments in the field of procedural law and the rule of evidence. For example, in the ICC statute, there is a language preventing judges to consider, to interpret any forms of consent given by the victim to sexual violence as relevant when exists a situation of coercive violence against her. The prosecutor’s office has to guarantee an expertise in the field of sexual crimes and they also have to pay particular attention to the witnesses and victims of sexual crimes and of crimes involving children. The progress in international criminal law has perhaps influenced also the national level.
A number of prosecutions have been launched for international crimes at the state level against warlords or former dictators where sexual violence have been–has been included in the indictments. So and also, quite importantly, the international community has developed since 2000, special attention to the role of women in peace processes. And in this context, it has matured a more consistent attention to the prevention and punishment of gender-based violence in the situations of conflicts and organized violence. So in 2008, for example, it has been established, the special representative of the Secretary-General for, on conflict-related sexual violence that produces every year a report to the General Assembly. The progress made in this field has not come without setbacks and shortcomings.
Prosecutions for gender-based crimes may have increased in number but conviction, as discussed, there is still a reluctance to adopt consistent policies to– against rape and other sexual violence in governmental and non-governmental armed groups. Cultural resistance to a radical ban of gender-based violence is still present in many societies and to a certain extent there has been also a revamping of machismo in politics and social behaviors, including social media. There is reason to believe that criminalization of sexual violence cannot be the only way to address such issue.
So criminalization focuses on the nasty behavior of some individuals or some groups and brings about their stigmatization but risks distracting our attention from the inequalities, the gender-based discriminations, which are the breeding grounds of such violence. In sum, this week, we will invite you to listen to the audios, to read the suggested papers and participating in the exercise, with an eye at how important is not to detach criminal prosecutions and trials from the social context in which they are immersed– even if social context is global and highly complex at it is, in the case of international criminal law.