University of Turin

Department of Law

MASTER OF LAWS (LL.M.) 2012-2013

IN INTERNATIONAL CRIME AND JUSTICE

The importance of the assessment of sexual violence under International

Criminal Justice: the case of forced pregnancy

Turin

27th June 2013

Supervisor: LL.M. Candidate:

Prof. Roberto Rivello M.S. Walleska Pareja Díaz

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Table of Contents  

INTRODUCTION ...................................................................................................................... 3

CHAPTER I ............................................................................................................................... 8

A HISTORICAL PERSPECTIVE OF WOMEN IN CRIMINAL LAW AND THE APPROACH TO GENDER AT THE INTERNATIONAL CRIMINAL COURT ................... 8

1.1 Historical perspective of women in Criminal Law ...................................................... 8

1.2 An overview of “gender” in the ICC ......................................................................... 10

1.2.1 Provisions on Gender ............................................................................................... 12

CHAPTER II ............................................................................................................................ 16

AN OVERWIEW OF SEXUAL VIOLENCE IN INTERNATIONAL CRIMINAL LAW .... 16

2.1 Provisions on sexual violence in the ICC Statute ........................................................... 16

2.2 International criminal tribunals and sexual violence ...................................................... 21

2.2.1 International Criminal Tribunal for the former Yugoslavia ..................................... 22

2.2.2 International Criminal Tribunal for Rwanda ........................................................... 23

2.2.3 Special Court for Sierra Leone ................................................................................ 24

2.3 Learning from the Criminal Justice Administration ....................................................... 25

2.4. Link between rape/forced marriage and forced pregnancy ........................................... 26

2.4.1 Rape ............................................................................................................................. 27

2.4.2 Forced marriage ........................................................................................................... 28

CHAPTER III ........................................................................................................................... 30

FORCED PREGNANCY ......................................................................................................... 30

3.1 Forced Pregnancy as an act of genocide, offence under Article 6(d) of the Statute ....... 30

3.2 Forced Pregnancy as a crime against humanity, offence under Article 7 (g) of the Statute ................................................................................................................................... 33

3.3 Forced Pregnancy as a war crime, offences under Article 8 (2) (b) (xxii) and (e) (vi) of the Statute ............................................................................................................................. 35

CONCLUSIONS ...................................................................................................................... 37

BIBLIOGRAPHY .................................................................................................................... 41

ANNEXES…….…………………………………………………………………………….45

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INTRODUCTION

They liked to punish us. They would ask women if they had male relatives in the city; I saw them ask this of one

woman, and they brought her 14- year-old son and forced him to rape her.... On [another] occasion, I was raped with a gun by one of the three men already in the room.... [O]thers stood watching. Some spat on us. They were

raping me, the mother and her daughter at the same time. Sometimes you had to accept ten men, sometimes three.... I felt I wanted to die... the Serbs said to us ‘Why aren’t you pregnant?’ ...I think they wanted to know

who was pregnant in case anyone was hiding it. They wanted women to have children to stigmatize us forever. The child is a reminder of what happened.

-Anonymous, Bosnia.1

When I was eight months pregnant from the rape, the police came to my hut and forced me with their guns to go to the police station. They asked me questions, so I told them that I had been raped. They told me that as I was not married, I will deliver the baby illegally. They beat me with whip on the chest and back and put me in jail.

They were other women in jail who had the same story. During the day, we had to walk to the well four times a day to get the policemen water, clean and cook for them. At night, I was in a small cell with 23 other women. I

had no other food than what I could find during my work during the day. And the only water was what I drank at the well. I stayed 10 days in jail and now I have to pay the fine.

-16-year-old Sudanese girl

Women and International Criminal Justice are two ideas that do not seem to go

together. First of all, when one thinks about crime, it is very difficult to imagine a woman as

its perpetrator. In a discriminative way most of us, almost automatically, imagine a man of a

certain age and from several specific ethnic groups.

Although women´s role in criminality, specifically in the international sphere, has been made

visible by some authors either as victims or perpetrators, it has been very difficult to entirely

assess a Gender Justice.

In debating the notion of gender and other issues, so-called feminist writers opened a wide range of critique not only related to international humanitarian law but also to “male dominated” international law in general.2

1 Interactive Population Center, Violence against girls and women, (last visited June 15, 2013, 15 10:00AM), 2 HORST FISCHER preface in N.N.R QUÉVINET, SEXUAL OFFENSES IN ARMED CONFLICT & INTERNATIONAL LAW (Transnational Publishers, 2005).

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On one hand, women as victims, represents a terrible subject on which we could stay on

forever. This includes facing atrocious crimes during both, armed conflicts and peacetime3, as

well as when, during the developing of a legal processes. In most cases, other elements arise;

shame or fear of talking about4 the crime due to threats; cultural and social rejection5 or,

general revictimization.

On the other hand, there are particularities of the women as perpetrators in criminal activities.

Taking into account that most crimes are committed as mules6, small drug dealings or being

accomplices to other crimes done by men,7 it is a fact that women´s role in human trafficking,

for instance, is not only as victims, but also as the so-called “pimps”8.

Moreover, there is an actual case against a woman in the International Criminal Court

(hereinafter “ICC”). SIMONE GBAGBO9 wife of LAURENT GBAGBO, former President of Ivory

Coast, is detained and has a pending case for allegedly committing crimes against humanity in

relation to murder, rape, and persecution.10

Simone Gbagbo's indictment includes charges of rape and sexual violence as a crime against humanity. That aspect of the indictment marks an important shift in the uneasy relationship between sexual violence and international criminal justice. Since the establishment of the Yugoslavia

3 Not by chance the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (The Palermo Protocol) UN Res. 55/25 of 15/11/2000 specifically refers to “women”. ESOHE AGHATISE, part of the Associazione Iroko Onlus Coalition against Trafficking in Women International (CATW) indicates that women, for instance, are the face of human trafficking for excellence. 4 This issues are no only on daily life basis but also specifically during the pre trial, trial and post trial periods as victims or witnesses. 5 It becomes imperative to change the patriarchal societies where women cannot even have an appropriate healing process because they will be revictimized by the rejection of their cultural and social environments including their own partners and husbands who do not have any idea what happened to them. 6 Term used to people who carry drugs, usually inside their bodies. 7 Idea from GARY HILL, Chief executive officer of CEGA Services in Lincoln, Nebraska and President of Contact Center and HRH Princess BAJRAKITIYABHA MAHIDOL of Thailand, UN Women Goodwill Ambassador presented on 21st May 2013 at UNICRI. They also presented the importance of the analysis of women in prison and their contribution to the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders, 2016 (the Bangkok Rules). 8 This recent phenomenon in the global trade in humans puts women as perpetrators which makes necessary to analyze why the same women are dealing with putting one of their own in this terrible situation. With out the aim of being exhaustive a first few questions may arise in relation to this topic: What is their social-economic condition? Do they have other alternatives? Were these women perpetrators, victims themselves? And if so, can this be qualified as “re-victimization”? How does the law assess this issue when it comes to the different kind of punishments, does it get reduced somehow? Maybe men perpetrators use them to create an environment of trust and then take advantage of it? 9(The Prosecutor v. Simone Gbagbo) 2012, ICC, February/11-January /12. Charges: Allegedly bears individual criminal responsibility, as indirect co-perpetrator, for four counts of crimes against humanity: murder, rape and other sexual violence, persecution and other inhuman acts, allegedly committed in the context of post-electoral violence in the territory of Côte d’Ivoire between 16 December 2010 and 12 April 2011. 10 William Burke-White, A Wife Accused of War Crimes: The Unprecedented Case of Simone Gbagbo, THE ATLANTIC MAGAZINE, (Dec. 3, 2012, 12:42 PM ET), available at http://www.glidemagazine.com/articles/39408/how-to-play-guitar-like-a-pro.html.

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and Rwanda tribunals (ICTY and ICTR) in the early 1990s, international criminal law has sought to hold accountable the (usually) male perpetrators of sexual violence against the (usually) female victims of that violence.11

This last paragraph introduces us to the topic of sexual violence. In this sense, it is not hard to

establish that the violation of sexual dignity must be, without a doubt, one of the worst

perpetrations that one could suffer.

The Security Council (hereinafter “SC”) of the United Nations (hereinafter “UN”) in its

Resolution 1820 (2008) adopted on the 5916th meeting that took place on June 19 2008,

demands:

That all parties to armed conflict immediately take appropriate measures to protect civilians, including women and girls, from all forms of sexual violence, which could include, inter alia, enforcing appropriate military disciplinary measures and upholding the principle of command responsibility, training troops on the categorical prohibition of all forms of sexual violence against civilians, debunking myths that fuel sexual violence, vetting armed and security forces to take into account past actions of rape and other forms of sexual violence, and evacuation of women and children under imminent threat of sexual violence to safety; and requests the Secretary-General, where appropriate, to encourage dialogue to address this issue in the context of broader discussions of conflict resolution between appropriate UN officials and the parties to the conflict, taking into account, inter alia, the views expressed by women of affected local communities.12

This resolution also notes: That rape and other forms of sexual violence can constitute a war crime, a crime against humanity, or a constitutive act with respect to genocide, stresses the need for the exclusion of sexual violence crimes from amnesty provisions in the context of conflict resolution processes, and calls upon Member States to comply with their obligations for prosecuting persons responsible for such acts, to ensure that all victims of sexual violence, particularly women and girls, have equal protection under the law and equal access to justice, and stresses the importance of ending impunity for such acts as part of a comprehensive approach to seeking sustainable peace, justice, truth, and national reconciliation;13

11 I totally agree with BURKE-WHITE when he states that: “The indictment is, therefore, an important symbol of unfortunate fact from a humanitarian perspective: women, as well as men, plan and commit horrific acts of violence. While there may be fewer examples of women committing these most heinous crimes, men are not the only ones capable of ordering such brutality. This indictment recognizes that reality and lays a marker that international criminal courts will hold any perpetrator—regardless of gender—responsible for his or her actions”. 12 SC Res. 1820, ¶ 3, UN Doc. S/RES/1820 (June 19, 2008) [hereinafter “SC Res. 1820”]. 13 Id., ¶ 4.

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In this respect, the International Criminal Tribunals, like the International Criminal Tribunal

for the former Yugoslavia (hereinafter “ICTY), the International Criminal Court for Rwanda

(hereinafter “ICTR”), the Special Court for Sierra Leona (hereinafter “SCSL”) and the ICC

not only have intended to assess the matter by penalizing and creating specific legal crimes to

condemn sexual atrocities but, in some cases, have also developed interesting jurisprudence

around some of these issues.

Throughout the world, sexual violence is endemic in armed conflict. During the genocide in Rwanda, women were victims of mass rape, sexual mutilation and held as sexual slaves. There have been regular reports of gang rape committed during the conflict in the Democratic Republic of Congo (DRC) that have resulted in extreme physical injuries such as fistula. Most recently, in the war in Libya, it has been documented that women were targeted for sexual violence due to their supposed political allegiance.14

Prosecuting this kind of atrocities has not been an easy task. There are problems in relation of

the evidence, witnesses’ statements, elements of the crimes, modes of liability, etc.

Nevertheless, there has been an important progress in terms of visibilizing the issue,

especially from the feminist input.

The case of forced pregnancy as a form of sexual violence represents the main focus of the

present paper. In this sense, it is primordial to ask ourselves:

Is the assessment of forced pregnancy under the standards of the International Criminal

Court and the Rome Statute of the International Criminal Court (hereinafter “Statute”,

“Rome Statute” or “ICC Statute”) sufficient towards complying gender justice?

In this context and to better understand the present investigation, it is relevant to enunciate the

content of its sections:

The first chapter has the purpose to give a brief historical analysis of the assessment of

the women in criminal law, along with the examination of the term “gender” in the ICC.

Secondly, throughout Chapter II, it is shown a compact overview of sexual violence in the

ICC, ICTY, ICTR, and the SCSL.

14ALISON COLE, MAKING THE PERPETRATORS OF MASS SEXUAL VIOLENCE PAY: INTERNATIONAL JUSTICE FOR GENDER-RELATED CRIMES 59 (2011) http://www.osisa.org/sites/default/files/making_the_perpetrators_of_mass_sexual_violence_pay-alison_cole.pdf

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On Chapter III it will be possible to study the case of forced pregnancy under the ICC Statute

taking into account its different approaches as an act of genocide, crime against humanity and

war crime. In this sense, the aim of this chapter is to examine the provisions and some of the

faults of its content.

To finalize the present paper, it will be important to present a set of conclusions and

recommendations.

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CHAPTER I

A HISTORICAL PERSPECTIVE OF WOMEN IN CRIMINAL

LAW AND THE APPROACH TO GENDER AT THE

INTERNATIONAL CRIMINAL COURT

This first chapter has the purpose to give a brief historical analysis of the assessment of

the women in criminal law, along with how the ICC Statute deals with the term “gender”.

One cannot tackle the crime of forced pregnancy without having these general ideas first.

1.1 Historical perspective of women in Criminal Law

If we start from the time of the Spanish Inquisition, we can see that during XII and XIII

centuries both, the inquisitorial system and the punitive one, brought a joint task of

"strengthening the patriarchal structure and the consequent subordination of women, as

essential chapter of its social, corporate and vertical disciplining"15. I fully share with

ZAFFARONI´S analysis, when he explains that this indoctrination was necessary to avoid the

endangered of the transmission of culture. This transmission of the culture has to be done in a

disciplined way, especially the sexuality of women. Thus, the Inquisition was the

manifestation of the newborn and organic punitive power.

ZAFFARONI appoints KRAMER and SPRENGER, as the drafters of the Inquisition Manual

approved by the papacy, the "Malleus Maleficarum" (The Hammer of Witches, 1484).

15 EUGENIO ZAFFARONI, EL DISCURSO FEMINISTA Y EL PODER PUNITIVO IN LAS TRAMPAS DEL PODER PUNITIVO, EL GÉNERO DEL DERECHO PENAL, 23 (CEADEL Editorial Biblos, 2000).

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In this paper, the author notes, it is given a clear explanation of how women were more prone

to evil, and that since they were created from the rib of a man, curved in its form, therefore

contrary to the righteousness of man. On the other hand, it was invented that the word

“female” came from the etymology of "less faith."

Thus, the Malleus Maleficarum stated that, “the human will leans to evil in people who are

biologically inferior, because they are weaker”16, and of course women were considered in

both characteristics and therefore prone to commit crimes.

Moreover, it is interesting to mention that during LOMBROSO´S period, women that were

criminalized were “virilized inmates”. The punitive power of his time selected women under

the stereotype of women as deviant masculinized from their submissive and domestic female

role. 17 Back in the seventieths, authors like BARATTA, express that one can find

criminological studies that take into account women's inequality in the criminal codes.

Related to this, “feminist criminologies”, treat criminal matter from that vision and women's

issues arise. This, however, was not sufficient and a critical reflection of this branch of law,

continued to increase.18 Most androcentric criminal codes kept and transplant the provisions

of the Inquisition lived in Western Europe.19 Thus, we can see that this legal corpus loudly

demanded amendments and reforms.

After this exposition, one can see that at the beginning, Criminal Law and the its

criminological assessment gave the idea that women were the cause of evil, and then turn to

be victims in need of protection, mostly in absurd and sexist ways.

This idea lead us to the main issue of our paper that relates to the provisions

established in order to protect women from crimes such as forced pregnancy. In the

16 Id., at 24. 17 Id., at 28. 18 Id., at 39. 19 A former version of the Ecuadorian Criminal Code had a provision that elaborate the following: Article 27, It is also an excusable offense when someone kills, wounds or strikes the guilty or the man who lies with her if surprised her daughter, granddaughter or sister during an illegitimate sexual act. It should be noted that some authors defended this policy by the justification that are "passionate transcendental states of the father, such as love, jealousy, pride and morality" which prevailed at the time of the reaction to the act of women. In my attempt to understand them, I agree with VALLADARES when she says that the only thing they were doing was directly and egregiously violate the right to life, integrity, equality and freedom of women. Not surprisingly, for the year 1998 Ecuador´s Parliament substantially reformed crimes such as sexual harassment, rape, “pimping” and decriminalized homosexuality. In 2005, important reforms were done in the area of sex crimes, such as statutory rape.

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international sphere, Criminal Law has tried to provide a legal development that complies

with the realities of the atrocities that have taken place in the world.

In relation to crimes, specifically or mostly commonly committed against women we

could see this “protective” assessment.

Nevertheless, we cannot forget, as ZAFFARONI stated, that punitive power tries to

“tranquilize” the antidiscrimination discourse, such as the feminist, setting traps by

incorporate and recognize the legitimate rights, but in turn only serves to provide a degree of

victim to women and their actions stop there.

The purpose of mentioning this argument is to avoid and if possible, make the proper

amendments to have a real gender assessment through International Criminal Law and its

legislation.

1.2 An overview of “gender” in the ICC

The ICC is the first global permanent international court with jurisdiction to prosecute

individuals for “the most serious crimes of concern to the international community”.20 In this

sense, the Rome Statute´s Preamble establishes that the States Parties, at the time they were

preparing this instrument, were mindful that during the XX Century millions of children,

women and men have been victims of unimaginable atrocities that deeply shock the

conscience of humanity:

The international war crimes tribunals that emerged in the early 1990´s sought to distance themselves from the first generation of tribunals established by the victorious Allied powers at Nuremberg and Tokyo nearly half a century earlier. This new model of justice would be truly independent and fully international in origin and operation. Such autonomy and neutrality would ensure the new tribunal´s legitimacy, and thereby help fulfill their ultimate mission of rehumanizing nations, communities, and individuals rent by atrocity and trauma.21

It was in the year 1992 that, as an offshoot of its work on a Code of Crimes against the Peace

and Security of Mankind, the UN International Law Commission (hereinafter “ILC”)

20 JENNIFER K. ELSEA, INTERNATIONAL CRIMINAL COURT: OVERVIEW AND SELECTED LEGAL ISSUES IN INTERNATIONAL CRIMINAL COURT POLICY, STATUS AND OVERVIEW, 79 (Nova Science Publishers, Inc., 2009) (2002). 21 VICTOR PESKIN, INTERNATIONAL JUSTICE IN RWANDA AND THE BALKANS, 235 (Cambridge University Press, 2008).

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commenced substantive work on a draft statute for an International Criminal Court. Two

years later, a Draft Statute was adopted and recommended to the UN General Assembly.

In this sense, this document formed the initial working document for the Preparatory

Committee´s work in the years 1995-1998.22

The final steps were taking during the United Nations Diplomatic Conference of

Plenipotentiaries on the Establishment of an International Criminal Court (hereinafter “Rome

Conference”) that began in the city of Rome, Italy on June 15th with the adoption of the

Statute on July 17th of 1998.23 Finally, the Rome Statute entered into force on 1st July 200224.

Throughout the time of the preparation and the actual period of the Rome Conference, several

global civil society members played an important role in presenting their demands in what the

final outcome had to be.

GLASIUS explains that most than 200 organizations were represented in Rome in which a large

number of women’s organizations, were included. Some started early on in the process and

others came much more later, but they realized that in order to adequately represent gender

concerns in the negotiations they had to be together. This issue was not an easy task with

religious and conservative groups around.25

The Coalition of women´s organizations was inspired by the example of the ICTY in their

work for an ICC26. The important thing was, says the author citing STEAINS, that ICTY

brought to the fore the issue of using rape27 as a component of ethnic cleansing during this

conflict.28

22 JAMES CRAWFORD, THE WORK OF THE INTERNATIONAL LAW COMMISSION, in ANTONIO CASSESE, PAOLO GAETA & JOHN R W D JONES (EDS), THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY 23 (Oxford University Press, 2008) (2002). 23 More information: http://untreaty.un.org/cod/icc/rome/proceedings/contents.htm. 24 Article 126 of the Rome Statute established that the entry into force of the Statute would take place on the first day of the month after the 60th day following the date of the deposit of the 60th instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations. For each State ratifying, accepting, approving or acceding to this Statute after the deposit of the 60th instrument of ratification, acceptance, approval or accession, the Statute shall enter into force on the first day of the month after the 60th day following the deposit by such State of its instrument of ratification, acceptance, approval or accession. 25MARLIUS GLASIUS, EXPERTISE IN THE CAUSE OF JUSTICE: GLOBAL CIVIL SOCIETY INFLUENCE ON THE STATUTE FOR AN INTERNATIONAL CRIMINAL COURT 141-143 (2002), http://www2.lse.ac.uk/internationalDevelopment/research/CSHS/civilSociety/yearBook/chapterPdfs/2002/chapter6.pdf. 26 Id., at 142. The author says that the ad hoc tribunals have an important role to play even as having “a favourable impact on the negotiations with regard to the establishment of an international criminal court. 27 GLASIUS indicates that the ICTY functionaries recognized that an ostensibly gender-neutral justice system would in fact fail to address gender-specific abuses, and took on board some of the concerns of women’s groups

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1.2.1 Provisions on Gender

As OOSTERVELD indicates, in the year 1998, the term “gender” was used and defined

for the first time in an international criminal law treaty, the Rome Statute of the ICC.29 In my

point of view, this represents an important progress for criminal law because, at least, it

makes visible the need to have an assessment in relation to the subject.

Referring to crimes against humanity (Article 7 (1) (h)), the Statute uses the term in relation

to the persecution against any identifiable group or collectivity on political, racial, national,

ethnic, cultural, religious, gender as defined in paragraph 3. This specific paragraph is the one

that contains the definition:

For the purpose of this Statute, it is understood that the term “gender” refers to the two sexes, male and female, within the context of society. The term “gender” does not indicate any meaning different from the above.

Later on, when talking about the applicable law that the Court shall use, it is said that the

application and interpretation of law pursuant to this Article must be consistent with

internationally recognized human rights, and be without any adverse distinction founded on

grounds such as gender as defined in Article 7, paragraph 3, age, race, colour, language,

religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or

other status (Article 21 (3)).

It is also mentioned that in relation to the qualifications, nomination and election of the 18

judges of the Court, there has to be taken into account the representation of the principal legal

systems of the world, equitable geographical representation and a fair representation of

female and male judges including judges with legal expertise on specific issues, including, but

not limited to, violence against women or children (Article 36).

Also when it comes to the protection of the victims and witnesses the Court shall take

appropriate measures to protect the safety, physical and psychological well-being, dignity and

when they did not had any gender-specific mandate. They even appointed a gender issues officer to work in the Prosecutor’s Office. Furthermore, its functionaries decided to allow rape victims to give testimony anonymously, and to seriously prosecute rape as a war crime. 28 Id., at 142. 29 Valerie Oosterveld, Definition of Gender in the Rome Statute of the International Criminal Court: A Step Forward or Back for International Criminal Justice, 55 HARVARD H.R.J., Vol. 18, 55-84 (2005).

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privacy of victims and witnesses. In so doing, the Court shall have regard to all relevant

factors, including age, gender as defined in Article 7, paragraph 3, and health, and the nature

of the crime, in particular, but not limited to, where the crime involves sexual or gender

violence or violence against children (Article 68). In relation to the Office of the Prosecutor,

this functionary shall appoint advisers with legal expertise on specific issues, including, but

not limited to, sexual and gender violence and violence against children (Article 42 (9)).

Moreover, he/she shall take appropriate measures to ensure the effective investigation and

prosecution of crimes within the jurisdiction of the Court, and in doing so, respecting the

interests and personal circumstances of victims and witnesses, including age, gender as

defined in Article 7, paragraph 3, and health, and take into account the nature of the crime, in

particular where it involves sexual violence, gender violence or violence against children

(Article 54). The author mentioned above explains that, “the administrative structure provided

for in the Rome Statute directs the Prosecutor to adopt a strong focus on gender-based crimes,

resulting in a thorough review of such crimes by the ICC’s judges”30:

After seeing how the Rome Statute names the concept of gender, it is important to indicate

that OOSTERVELD points out, something that I personally consider accurate. She states that

both sides in the “gender” debate would have preferred a definition that more clearly

articulated their positions:

As is often the case in international negotiations, states sought refuge in constructive ambiguity, leaving much of the decision-making on the content of the definition to the ICC’s judges […] Since the interpretation of “gender” is left with the ICC itself, there are very real concerns by many commentators that the ICC will choose a narrow and regressive reading of the “gender” definition. This could have ramifications not only for how the ICC addresses certain crimes, applicable law and victims and witnesses, but also on the theorization of “gender” in international law more generally.31[…] the concept is broad and flexible enough to ensure a positive and sensitive interpretation by the ICC’s Prosecutor, Registrar, and judges, its text is also spare and circular.32

8 years ago, the author had the idea that, despite what was mentioned in the previous

lines, the ICC was pointing in a more progressive direction and that a plain reading of the

Rome Statute’s text and an interpretation based on U.N. definitions of “gender” support a

differentiation between “sex” and “gender,” rather than a conflation of the two terms but still

should not automatically be replicated in other international law documents. 30 Id., at 82. 31 Id., at 82. 32 Id., at 82.

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I fully agree that the Rome Statute’s definition of “gender” is, in fact, undertheorized and it is

expected from the Chambers to give content to the term. Plus as OOSTERVELD says, increased

theorization could produce some important outcomes like ensuring broad and productive

interpretations of the term by the ICC; transporting theories on its definition from other

contexts and examining its applicability to international law generally, as well as to specific

areas of international law such as international human rights, humanitarian, criminal, and

refugee law.33

Nevertheless, when the term “gender” is put above the table of negotiations, one knows that

no one is going to be happy with its development. Not only because it could be insufficient or

underestimated but also because the more conservative and religious countries (with great

power most of the time) will try to quash whatever bill that will “expand” it too much34.

It is clear that the Rome Statute definition does not transform international law from

understanding “gender” in one way to understanding it a different way:

In this sense, the definition in the Rome Statute represents a missed opportunity to remap the boundaries of international law. Practically speaking, it probably was never possible to make a dramatic shift, given the dynamics of the negotiation. The result, however, is broad enough to allow the ICC to interpret the definition to reflect the approaches taken within the United Nations, including nondiscrimination on the basis of sexual orientation, and avoid regression in the law. It is also enough of an empty vessel that increased attention to the theories of “gender” by international lawyers could also have a significant and positive impact on the content of “gender” within international law.35

As noted by BIRGIN, we can see that "the criminal law power, both in its definition in its

practices-is in the hands of the State, the most powerful means of social control"36. Following

this reasoning, we can infer that the criminal justice system as the author says, will have

already prefabricated reflect a gender vision leading to this branch of law itself becomes a

clear means of social control. Taking this into consideration and transplanting this to the

international sphere, it could be interesting to use this “control” established by the member

States and fully arrogate and develop the term “gender” in the sense of giving a real gender

approach and mainstreaming to International Criminal Law.

33 Id., at 83 citing HILARY CHARLESWORTH & CHRISTINE CHINKIN, THE BOUNDARIES OF INTERNATIONAL LAW: A FEMINIST ANALYSIS 335 (2000). 34 This idea is stated especially in the sense of sexual orientation and gender identity. 35 OOSTERVELD, supra note 29, at 84. 36 HAYDÉE BIRGIN, LAS TRAMPAS DEL PODER PUNITIVO, EL GÉNERO DEL DERECHO PENAL 12 (CEADEL Editorial Biblos, 2000).

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I personally consider that only then “gender justice” could be done for the thousands of

victims of the atrocities that this law branch deals with.

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CHAPTER II

AN OVERWIEW OF SEXUAL VIOLENCE IN

INTERNATIONAL CRIMINAL LAW

With the intention to continue into our topic, this chapter examines the provisions related

with the violation of the sexual integrity in the Rome Statute plus the Rules of Procedure and

Evidence (hereinafter “the Rules”). One cannot tackle the issue of forced pregnancy without

thinking about women and their sexual integrity. COLE notes that past and current conflicts

have demonstrated the horrific levels of suffering inflicted on women and girls, in relation to

these crimes.37

2.1 Provisions on sexual violence in the ICC Statute

The already cited SC Resolution 1820 establishes that the SC reaffirms which was

expressed in the 2005 World Summit Outcome Document that dealt with the elimination of

all forms of violence against women and girls, including by ending impunity and by ensuring

the protection of civilians, in particular women and girls, during and after armed conflicts, in

accordance with the obligations States under international humanitarian law and international

human rights law. Likewise, in this instrument, the SC recalls the inclusion of a range of

sexual violence offences in the Rome Statute of the International Criminal Court and the

statutes of the ad hoc international criminal tribunals.38

37 COLE, supra note 14, at 59. We are conscious that these kinds of crimes can also involve men and boys. Nevertheless, the numbers indicate that it is more common for girls and women to be the victims. See: Sexual Violence in Conflict and Post-Conflict: Engaging Men and Boys, http://unfpa.org/webdav/site/global/shared/documents/publications/2012/Advocacy%20Brief-%20Sexual%20Violence%20FINAL.pdf 38 SC Res. 1820, recitals, UN Doc. S/RES/1820 (June 19, 2008).

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As BANKS mentioned when the ICC begins its work investigating wartime atrocities and

prosecuting those who are criminally responsible, it encounter countless acts of sexual

violence.39 In this sense, it is transcendental to indicate that the ICC Statute has, in fact,

criminalized serious crimes relative to sexual dignity.

To this respect, Article 7 (1)(g) establishes as a crime of against humanity: rape, sexual

slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of

sexual violence of comparable gravity when committed as part of a widespread or systematic

attack directed against any civilian population. In the same way, under Article 8 (2) (b) xxii,

committing rape, sexual slavery, enforced prostitution, forced pregnancy (as defined in

Article 7, paragraph 2 (f)), enforced sterilization, or any other form of sexual violence also

constituting a grave breach of the Geneva Conventions are considered war crimes as serious

violations of the laws and customs applicable in international armed conflict, within the

established framework of international law. Similarly, Article (2) (e) vi, states that

committing rape, sexual slavery, enforced prostitution, forced pregnancy, (taking into account

Article 7, paragraph 2 (f)), enforced sterilization, and any other form of sexual violence also

constituting a serious violation of Article 3 common to the four Geneva Conventions are

considered war crimes as serious violations of the laws and customs applicable in armed

conflicts not of an international character, within the established framework of international

law.

The Statute has some provisions that indicate the following: since victims and witnesses

are allowed to testify and participate in the proceedings the ICC is required to protect their

safety, physical and psychological well-being, dignity and privacy taking into account factors

such as gender and the nature of the crime, particularly where the crime involves sexual or

gender violence (Article 68 (1)). As mentioned before the Office of the Prosecutor shall

appoint advisers with legal expertise on specific issues, including, but not limited to, sexual

and gender violence (Article 42 (9)). Moreover, he/she shall take appropriate measures to

ensure the effective investigation and prosecution of crimes within the jurisdiction of the

Court, and in doing so, respecting the interests and personal circumstances of victims and

witnesses, including age, gender as defined in Article 7, paragraph 3, and health, and take into

account the nature of the crime, in particular where it involves sexual violence, gender

violence or violence against children (Article 54). Finally, the Registrar shall set up a Victims

and Witnesses Unit within the Registry that will include staff with expertise in trauma,

including trauma related to crimes of sexual violence (Article 43(6)). 39ANGELA M. BANKS, SEXUAL VIOLENCE AND INTERNATIONAL CRIMINAL LAW: AN ANALYSIS OF THE AD HOC TRIBUNAL'S JURISPRUDENCE & THE INTERNATIONAL CRIMINAL COURT'S ELEMENTS OF CRIMES 7 (Faculty Publications, 2005), http://scholarship.law.wm.edu/facpubs/305.

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When talking about the Rules, we can find that one of the responsibilities of the Registrar

relating to victims and witnesses is to take gender sensitive measures to facilitate the

participation of victims of sexual violence at all stages of the proceedings (Rule 16 (1) (d)). It

also states that the Victims and Witnesses Unit in respect to all witnesses, victims who appear

before the Court, and others who are at risk on account of testimony given by such witnesses,

in accordance with their particular needs and circumstances, shall assist in obtaining medical,

psychological and other appropriate assistance and make available to the Court and the parties

training in issues of trauma, sexual violence, security and confidentiality ((Rule 17 (2) a) (iii-

iv). Regarding witnesses, they should give them advice on where to obtain legal advice for the

purpose of protecting their rights, in particular in relation to their testimony, also assisting

them when they are called to testify before the Court and moreover, take gender sensitive

measures to facilitate the testimony of victims of sexual violence at all stages of the

proceedings (Rule 17 (2) b) (i-iii).

Referring to the provisions relating to various stages of the proceedings, specifically in

respect to Evidence (Chapter 4, Section I) it is indicated that the rules of evidence set forth in

this chapter, together with Article 69, shall apply in proceedings before all Chambers and that

without prejudice to Article 66 paragraph 340, a Chamber shall not impose a legal requirement

of corroboration in order to prove any crime within the jurisdiction of the Court, in particular,

crimes of sexual (Rule 63 (1 & 4)).

It is important to cite the specific provisions about the principles of evidence in cases of

sexual violence and of evidence of other sexual conduct:

In cases of sexual violence, the Court shall be guided by and, where appropriate, apply the following principles: (a) Consent cannot be inferred by reason of any words or conduct of a victim where force, threat of force, coercion or taking advantage of a coercive environment undermined the victim’s ability to give voluntary and genuine consent; (b) Consent cannot be inferred by reason of any words or conduct of a victim where the victim is incapable of giving genuine consent; (c) Consent cannot be inferred by reason of the silence of, or lack of resistance by, a victim to the alleged sexual violence;

40 Rule 66 (3) Solemn undertaking: Before testifying, the witness shall be informed of the offence defined in Article 70, paragraph 1 (a). Article 70, Offences against the administration of justice: 1. The Court shall have jurisdiction over the following offences against its administration of justice when committed intentionally: (a) Giving false testimony when under an obligation pursuant to Article 69, paragraph 1, to tell the truth […].

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(d) Credibility, character or predisposition to sexual availability of a victim or witness cannot be inferred by reason of the sexual nature of the prior or subsequent conduct of a victim or witness (Rule 70).

In the light of the definition and nature of the crimes within the jurisdiction of the Court, and subject to Article 69, paragraph 4, a Chamber shall not admit evidence of the prior or subsequent sexual conduct of a victim or witness (Rule 71)

I personally consider that approaching the issues of consent added to credibility,

character or predisposition to sexual availability of the victim to guide the ICC in this in this

kind of procedures is especially important. These, in the sense such an important

jurisdictional organ shall avoid “judging” the victim with a sexist and misogynist approach.41

It is also stated that when there is an intention to introduce or elicit, including by means of the

questioning of a victim or witness, evidence that the victim consented to an alleged crime of

sexual violence, or evidence of the words, conduct, silence or lack of resistance of a victim or

witness as referred to in principles (a) through (d) of Rule 70, notification shall be provided to

the Court which shall describe the substance of the evidence intended to be introduced or

elicited and the relevance of the evidence to the issues in the case (Rule 72 (1)). In relation to

this, in the decision whether the evidence referred to in sub-Rule 1 is relevant or admissible, a

Chamber shall hear in camera the views of the Prosecutor, the defence, the witness and the

victim or his or her legal representative, if any, and shall take into account whether that

evidence has a sufficient degree of probative value to an issue in the case and the prejudice

that such evidence may cause, in accordance with Article 69, paragraph 4.

41 This includes not only the well known “no” sometimes means “yes” when it comes from a woman and sexual relations but also in the sense that some Judgments can actually bring up some moral and/or religious personal statements that had nothing to do with the crime itself and more over violate the principle of equality and no discrimination. For instance in Ecuador, we have revised some examples of judgments and decisions in relation to statutory rape that stated: “The Chamber Rules in favor of the victim because defence failed to prove that she had previous love relationships, even worst of sexual nature, they reaffirm that the minor is a good conduct person”, (Criminal Chamber of Carchi, September 11, 1974). “The girl was honest […] one witness mention that they had a relationship, Martínez (the man) use to take her out in a red car” (First Chamber of the Superior Court of Quito, April 7, 1975). In this case the judges of the Chamber did not Rule in relation to rape because the female accepted to go in a hotel as the place to have an interview and after the rape she did not flee the pace. She supposedly did not act as a “raped” woman. In my opinion, judges forgot that prosecution proved that the perpetrator offered to bring someone who had a job offer and that he covered her mouth with a sheet to commit anal rape, (Second Criminal Chamber of the Supreme Court of Justice, April 27, 2004) It is worth mentioning that the defence indicated that the perpetrator “knew” the girl had a bad conduct in high school. The Chambers opinion was that the lack of virginity and previous sexual relationships showed that she could consent the sexual relationship in question, (Second Criminal Chamber of the Supreme Court of Justice September 7 2004).

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For this purpose, the Chamber shall have regard to Article 21, paragraph 3, and articles 67

and 68, and shall be guided by principles (a) to (d) of Rule 70, especially with respect to the

proposed questioning of a victim (Rule 72 (2)).

It is worth mentioning that if the Chamber determines that the evidence referred to in sub-

Rule 2 is admissible in the proceedings, they shall state on the record the specific purpose for

which the evidence is admissible (Rule 72 (3)).42

It is consider a general principle the idea that a Chamber in making any direction or order, and

other organs of the Court in performing their functions under the Statute or the Rules, shall

take into account the needs of all victims and witnesses in accordance with Article 68, in

particular, children, elderly persons, persons with disabilities and victims of sexual or gender

violence (Article 86).

It there exists a motion coming from the Prosecutor, the defence, or upon the request of a

witness or a victim or his or her legal representative, the Chamber, after consulting the

Victims and Witnesses Unit, could order special measures such as, but not limited to,

measures to facilitate the testimony of a traumatized victim or witness, a child, an elderly

person or a victim of sexual violence, pursuant to Article 68, paragraphs 1 and 2. The

Chamber shall seek to obtain, whenever possible, the consent of the person in respect of

whom the special measure is sought prior to ordering that measure (Rule 88 (1)).

Also the Chamber may hold a hearing on a motion or a request under sub-Rule 1, if necessary

in camera or ex parte, to determine whether to order any such special measure, including but

not limited to an order that a counsel, a legal representative, a psychologist or a family

member be permitted to attend during the testimony of the victim or the witness (Rule 88 (2)).

The Chamber should also take into consideration that violations of the privacy of a witness or

victim may create risk to his or her security. In this sense, a Chamber shall be vigilant in

controlling the manner of questioning a witness or victim so as to avoid any harassment or

intimidation, paying particular attention to attacks on victims of crimes of sexual violence

(Rule 88 (5)).

When it comes to recording of questioning in particular case, it is important to mention that

whenever the Prosecutor questions a person to whom Article 55, paragraph 2, applies, or for

whom a warrant of arrest or a summons to appear has been issued under Article 58, paragraph

7, the questioning shall be audio-or video-recorded, in accordance to a specific procedures.

This includes the idea that the Prosecutor may make an application choosing to follow the

procedure in this Rule when questioning other persons than those mentioned in sub-Rule 1, in

particular where the use of such procedures could assist in reducing any subsequent 42 In evaluating the evidence during the proceedings, the Chamber shall apply principles (a) to (d) of Rule 70.

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traumatization of a victim of sexual or gender violence, a child or a person with disabilities in

providing their evidence (Rule 112 (4)).

It is not rarely that someone could take sexual violence, as something natural that

happens during an armed conflict, or even worst something that women deserve because of

the way the dress or dress. Nevertheless, even though I fully agree with COLE when she

indicates that throughout the world sexual violence is endemic in armed conflict43, it is not a

reason to underestimate it. I consider that is why provisions in the different statutes, including

the Rome Statute and the Rules, shall be as clear as possible in order to avoid helplessness of

the victims.

2.2 International criminal tribunals and sexual violence

As we know, it has been more than 10 years since the ICC started functioning. When

it comes to analyze its jurisprudence, we may look at the Lubanga case, the only one that has

a complete judgment. In this matter, COLE indicates that until 2011, the cases under the ICC

consideration (all seven from Africa)44 invoked charges for sexual violence, except the very

first case at the ICC mentioned before. Along with the author´s opinion, in this case, there

was in fact evidence of widespread sexual violence.

With the purpose to have a better picture of the jurisprudence available about sexual violence

it has been necessary to gadder information in relation to the ICTY, ICTR and the SCSL.

It is not new for a international tribunal to prosecute crimes related to sexual integrity, as

mentioned before, the ad hoc tribunals like the ICTY and the ICTR45, have convicted

individuals of crimes against humanity and war crimes for various acts of sexual violence

including rape, sexual mutilation, and sexual slavery.46 However, it is important to say that

not always one could find successful prosecutions of these international tribunals:

The first international treaty implicitly outlawing sexual violence, the Hague Convention of 1907, did not end impunity for these crimes: after World War II, for instance, the International Military Tribunal at Nuremberg did not expressly prosecute sexual violence, and the Tokyo

43COLE, supra note 14, at 59. 44 COLE explains that three state parties, Uganda, DRC and the Central African Republic, have initiated referrals concerning events taking place in their countries to the ICC. There have been two referrals from the UN Security Council regarding the non-state parties of Libya and Darfur, Sudan. And finally the ICC prosecution, of its own volition, has sought to commence proprio motu investigations in Kenya and most recently in Ivory Coast. 45 HAFFAJEE says for example, that the UN resolution establishing the ICTY specifically referenced sexual violence against Muslim women, although the resolution creating the ICTR made no mention of the topic. 46 BANKS, supra note 39, at 7.

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Tribunal ignored the Japanese army’s enslavement of “comfort women”. In 1949, the landmark Geneva Conventions stated: “Women shall be especially protected … against rape, enforced prostitution, or any form of indecent assault.” The wars in the former Yugoslavia revealed the urgent need to bring these historic international laws out of theory and into the courtroom.

After this idea, we pretend to put forward some relevant ideas about the Ad hoc Tribunals

in relation to acts of sexual violence. Nevertheless, we shall punctuate that we were not able

to find available jurisprudence specifically related to forced pregnancy.

2.2.1 International Criminal Tribunal for the former Yugoslavia

The ICTY have played a historic role in the prosecution of wartime sexual violence and

has an important number of cases in relation to crimes of sexual violence. In accordance to

the Tribunal´s information since it started its work, 78 individuals, or 48% of the 161 accused,

had charges of sexual violence included in their indictments:47

• From the first days of the Tribunal’s mandate, investigations were conducted into reports of systematic detention and rape of women, men and children. Almost half of those convicted by the ICTY have been found guilty of elements of crimes involving sexual violence. Such convictions are one of the Tribunal's pioneering achievements. They have ensured that treaties and conventions which have existed on paper throughout the 20th century have finally been put in practice, and violations punished […] Together with its sister tribunal for Rwanda, the Tribunal was among the first courts of its kind to bring explicit charges of wartime sexual violence, and to define gender crimes such as rape and sexual enslavement under customary law.48

The ICTY has available some key statistics up to 2011 of sexual violence cases that include

the name of the case and accused, sentence for the total of convictions, the modes of liability.

(See Annex I for the full list of cases)

As written in the Tribunal´s web page, until mid 2011, 28 individuals have been

convicted for their responsibility for crimes of sexual violence, as defined under Article 7(1)

of the ICTY Statute. Four of them were additionally convicted for failing to prevent or punish

the actual perpetrators of the crimes, under Article 7(3) of the Statute.49

47 ICTY, Crimes of Sexual Violence, available at http://www.icty.org/sid/10586. 48 Id. 49 ICTY, Crimes of Sexual Violence, In numbers, available at http://www.icty.org/sid/10586.

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It is vital to mention that sexual atrocities were committed against Bosnian Croats and

Bosnian Muslims and even persons from Serb origin and that they were common and

widespread.

2.2.2 International Criminal Tribunal for Rwanda

The ICTR, the sister of ICTY, has also numerous cases in relation to sexual violence. (See

Annex II for the full list of cases)

HAFFAJEE stresses that during the year 1994 when the conflict in Rwanda took place, rape

occurred on a massive scale (from 250,000 to 500,000) in the genocide and that this crime

and sexual violence, in general, were used as political and military tools to target female Tutsi

civilians.50

Until 2009, nine out of 13 completed cases involving sexual-violence findings, the violence

was found to be part of a widespread and/or systematic attack directed against civilian

populations.51

[…] The crimes, instrumentalities of war, often had little or no “sexual” component. Though low-level militia members and soldiers generally perpetrated these crimes, military and political leaders instigated, encouraged, oversaw, and, at times, personally committed rape and acts of sexual violence.52

Specifically, about our topic, forced pregnancy, in the indictment against MPIRANYA (ICTR-

2000-56) we may find a reference to it and to numerous sexual crimes where the target were

Tutsi women and young girls:

During the events referred to in this indictment, rapes, sexual assaults and other crimes of a sexual nature were systematically and widely committed throughout Rwanda. These crimes were perpetrated by, among others, soldiers, militiamen and gendarmes against the Tutsi population, in particular against Tutsi women and young girls” (indictment par 5.71). See also indictment pars 4.40 Furthermore, soldiers, militiamen and gendarmes abducted some Tutsi women and girls, and took them to other locations,

50 REBECCA L. HAFFAJEE, PROSECUTING CRIMES OF RAPE AND SEXUAL VIOLENCE AT THE ICTR: THE APPLICATION OF JOINT CRIMINAL ENTERPRISE THEORY 201 http://www.law.harvard.edu/students/orgs/jlg/vol291/haffajee.pdf 51 UN PEACEKEEPING BEST PRACTICES SECTION (PBPS), DIVISION FOR POLICY, EVALUATION AND TRAINING (DPET), REVIEW OF THE SEXUAL VIOLENCE ELEMENTS OF THE JUDGMENTS OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA, THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA, AND THE SPECIAL COURT FOR SIERRA LEONE IN THE LIGHT OF SECURITY COUNCIL RESOLUTION 1820 47 (2010), http://www.unrol.org/files/32914_Review%20of%20the%20Sexual%20Violence%20Elements%20in%20the%20Light%20of%20the%20Security-Council%20resolution%201820.pdf. 52 HAFFAJEE, supra note 50, at 201.

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where they raped or sexually assaulted them or committed other crimes of a sexual nature against them. These acts were commonly accompanied by verbal abuses, physical assault, degrading treatments and several cases of murder. Those crimes resulted in serious mental and physical injuries, permanent disabilities, including destruction of reproductive organs, unwanted pregnancies and sexually transmitted diseases, including AIDS.53

It is transcendental to mention that sexual violence takes on various forms in ICTR

judgments. In this Tribunal, until 2009 as indicated before, there have been some important

development that include the following judgments: rape, torture, inhumane acts, and

persecution as crimes against humanity; rape, and outrages upon personal dignity as war

crimes; and rape, and serious bodily or mental harm as genocide. Rape and/or other sexual

violence amounted to torture in one case.54

2.2.3 Special Court for Sierra Leone

Even though the SCSL cannot be compared to the former Tribunals on the amount of

cases that it has, still one could see that during this conflict, there was also sexual violence

against civilians as crimes against humanity and war crimes. These cases are the following:

§ Armed Forces Revolutionary Forces (AFRC) case (Prosecutor vs Brima and 2 others,

SCSL-04-16);

§ Civil Defense Forces (CDF) case (Prosecutor vs Fofana and Kondewa, SCSL-04-14);

and,

§ Revolutionary United Front (RUF) CASE (Prosecutor vs Sesay and 2 others, SCSL-

04-15).

We have found an important assessment of the Trial Chamber´s in the RUF case, which

actually relates to the idea of the “occupation of the womb”:

Rape became a specific tool of control and assertion of RUF power, as evidenced in the Trial Chamber’s observation that “[t]he deliberate and concerted campaign to rape women constitutes an extension of the battlefield to the women’s bodies.55

53 UN PEACEKEEPING BEST PRACTICES SECTION, supra note 51, at 99. 54 Id., at 47. 55 VALERIE OOSTERVELD, THE GENDER JURISPRUDENCE OF THE SPECIAL COURT FOR SIERRA LEONE: PROGRESS IN THE REVOLUTIONARY UNITED FRONT JUDGMENTS, (November 21, 2010), http://www.lawschool.cornell.edu/research/ILJ/upload/Oosterveld-final.pdf.

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This is one of the main ideas we intend to expose. Sometimes, it becomes so difficult to

understand that we are not talking about a provisions that tackle simple legal-protected goods,

but cases that involve the person/woman/girl itself it its more deep intimacy and sense of self.

Even though, it could be possible to have more developed and more numerous judgments, it is

important to mention that the example of these three tribunals can show the will to prosecute

these kind of atrocities and set an example to the ICC.

2.3 Learning from the Criminal Justice Administration

After observing some examples of the most important judgments around sexual violence in

the international sphere, it becomes necessary to point out some important ideas from these

courts.

These three tribunals were established to try the international crimes of genocide, crimes

against humanity and war crimes and its substantive legal assessment is similar. However,

each tribunal has its development of each topic in their Statutes. For instance ICTY and ICTR

can try genocide but SCSL has no jurisdiction to do so. Furthermore, its Statutes do not tackle

a category of atrocity crimes called “war crimes”. As stated in the Review of the Sexual

Violence Elements of the Judgments of the ICTY, the ICTR, And the SCSL in the light of SC

Res. 1820, the various categories of crimes drawn from international humanitarian law which

this report refers to as “war crimes” also differ from one court to the next. A specific

difference refers to the idea that when the SCSL, this Court can try certain crimes under

Sierra Leonean domestic law, the ICTY and ICTR cannot.56

Another important issue from these jurisdictional organs relates to prosecutions in the ICTY

and ICTR offices. They started to apply the Joint Criminal Enterprise Theory (hereinafter

“JCE”) as a mode of liability, in other words, a form to commit a crime,57 in order to procure

more rape and sexual violence convictions.

56 UN PEACEKEEPING BEST PRACTICES SECTION, supra note 51, at 20-22. 57 HAFFAJEE, supra note 50, at 212-216. The author explains that JCE also has been referred to as “common purpose” or “common plan” liability, although the ICTY Appeals Chamber has expressed a preference for the term “joint criminal enterprise” for the sake of consistency. JCE theory, says Haffajee, refers to crimes committed by a plurality of persons, or co perpetrators, all of whom participate in the same criminal conduct and possess the attendant mens rea. The rationale behind this form of liability states the author, is that all those who participate in a common criminal action and share criminal intent should also share in criminal liability, no matter their role in the crime, because each is indispensable to the result and it would be difficult to distinguish between their degrees of liability. It is indicated that JCE is different the crime of aiding and abetting (or complicity), conspiracy and command responsibility in international criminal law.

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They have used this theory (category 158 and 359 most generally applicable) responding to

great evidentiary barriers they face with regards to prosecuting crimes of sexual violence and

when dealing with nexus between the perpetrator and crimes committed on the ground.60

To finalize, we have found important to have some kind of Digest of the jurisprudence

related to sexual violence in all the tribunals that have dealt with it.61 This could be a good

asset to students, lawyers and jurisdictional authorities to approach the subject in a practical

way.

2.4 Link between rape/forced marriage and forced pregnancy

There are two other crimes contemplated in the Rome Statute that, in my point of

view, must be mention in the present paper, in order to have a more complete assessment of

forced pregnancy. Rape and forced marriage62 are not only violations of the ICC Statute´s

58 Id., at. 214. The author explains that all of the participants in the joint criminal enterprise, acting pursuant to a common design, possessed the same criminal intention. She indicates that the example is given of a plan formulated by the participants in the joint criminal enterprise to kill where, although each of the participants in the plan may carry out a different role, each of them has the intent to kill. It is stated in this article that under category 1 the burden of proof is still relatively high for the prosecution. In this case, she says, a prosecutor must prove that a common plan to commit the crime existed, that the defendant voluntarily participated in at least some aspect of that common plan, and that he or she also assisted in committing the crime—even if he or she was not the actual physical perpetrator. In other words, indicates in the case of rape or sexual violence, the agreement under the common plan must be to commit the act itself. 59 Id., at. 214-215. HAFFAJEE says that in this case all of the participants were parties to a common design to pursue one course of conduct, where one of the persons carrying out the agreed object of that design also commits a crime which, whilst outside the “common design,” was nevertheless a natural and foreseeable consequence of executing “that common purpose.” The example is given of a common (shared) intention on the part of a group to remove forcibly members of one ethnicity from their town, village or region (labelled “ethnic cleansing”), with the consequence that, in the course of doing so, one or more of the victims is shot and killed.78 Under JCE Category 3, the most extended form of the theory, the prosecution needs to establish that the crime charged was objectively a natural and foreseeable consequence of the execution of the JCE, and that the accused was subjectively aware that such a crime was a possible consequence of that execution and that he or she participated in the JCE nonetheless.81 More than negligence is required under this category; instead dolus eventualis (sometimes called “advertent recklessness”) is necessary.82 Thus, if a crime of rape goes beyond the intended criminal object of the JCE, which could be to kill members of a group, then rape must have been a natural and foreseeable consequence to a reasonable person. Further, says the author, the accused must herself or himself have been aware that rape could follow from the criminal object. 60 Id., at. 212. The author explains that even though JCE is not explicitly mentioned in either the ICTR or ICTY Statutes, judges have found it to be implicitly included in Article 7(1) on individual criminal responsibility of the ICTY Statute. 61 See MAGALI MAISTRE and NICOLE RANGEL, Analytical and Comparative Digest of the ICTY, ICTR and SCSL jurisprudence on International Sex Crimes and “Gender Jurisprudence and International Criminal Law Project”. This web page, even though it does not have a complete Digest, provides information about the following: Extraordinary Chambers in the Courts of Cambodia; International Criminal Court; International Criminal Tribunal for Rwanda; International Criminal Tribunal for the former Yugoslavia; International Military Tribunals - Nuremberg and Far East Tribunals; Special Panels for Serious Crimes in East Timor; and, State Court of Bosnia and Herzegovina - Section I for War Crimes, available in http://www.genderjurisprudence.org/index.php/digests. 62 We are not assessing the crime of sexual slavery that can also lead to forced pregnancy.

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provisions themselves, but of human rights in general. In this sense, it becomes relevant to

have a brief analysis of them and then establish the proper connection to our topic.

2.4.1. Rape

Without the aim of being exhaustive63, it is our objective to mention a general idea of

the crime of rape and specially its direct relation to forced pregnancy. Rape as a mean to

commit forced pregnancy it is not hard to understand. It is obvious that in order to provoke a

forced pregnancy there must be an act of rape before.

As we know, rape has not only an assessment through domestic criminal law, international

criminal law, but also in relation to the prohibition of torture under Human Rights law64,

Humanitarian Law standards and even jus cogens and erga onmnes principles. These legal

frames establish a huge commitment for States to comply with these standards.

This crime can represent genocide, war crimes and crimes against humanity. MAIER states

that after a long process of negotiating and re-thinking we can have a definition of rape:65

The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body. The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent.66

After this definition and taking into account the judgments mentioned in the former sections,

we might establish that different Tribunals have developed rape and its assessment has been

crucial to analyze gender criminal justice.

63 The evolution in International Criminal Case Law has been wide over the years. It would be necessary a whole new paper to discuss it. 64 ICTY Trial Chamber noted that torture was prohibited by international human rights law (Prosecutor v. Furundlija, Case No. IT-95-17/1-T, Judgment, 139 (Dec. 10, 1998). 65 NICOLE BRIGITTE MAIER, THE CRIME OF RAPE UNDER THE ROME STATUTE OF THE ICC: WITH A SPECIAL EMPHASIS ON THE JURISPRUDENCE OF THE AD HOC CRIMINAL TRIBUNALS 148 (2011), http://ojs.ubvu.vu.nl/alf/article/view/209. 66 Id., at 148.

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In accordance to this, the United Nations Population Fund (hereinafter “UNFPA”) an

important agency from the UN says: Coerced pregnancy, an extreme form of gender-based violence, is usually a result of rape. Rape victims suffer from both the physical consequences of sexual assault and the equally debilitating psychological trauma. The physical injuries can range from cuts and bruises to broken bones and loss of consciousness. A study of rape victims in Bangladesh found that 84 per cent suffered severe injuries resulting in unconsciousness or even death.67

As a matter of fact, UNFPA indicates that psychological and physical consequences

(including HIV/AIDS) from a rape are very common but that one of the most serious

consequences of rape is unwanted pregnancy:

Tragically, these women find little support for their condition and face limited options for dealing with the problem in ways that preserve their dignity and provide them with the necessary medical care. Very often, they are presented with torturous choices of having to either complete the pregnancy or resort to illegal, dangerous abortion methods. 68

This outcome will be analyzed in the conclusions section of the present paper.

2.4.2 Forced marriage

The practice of forced marriages is also related to the idea of forced pregnancy.69 In

this sense, one could see that the ICC Statute does not deal with the crime itself, but it could

be taken as implicit in the crime against humanity under the category of “other inhumane

acts” (Article 7 (1) (k).

We may say that even though, forced marriage is not a crime itself (of course a

violation of the right to freedom) it could lead to rape and unwanted pregnancy. Sierra Leone

case is a good example of these kinds of situations:

There is substantial evidence in the Trial Judgment to establish that throughout the conflict in Sierra Leone, women and girls were systematically abducted from their homes and communities by troops belonging to the AFRC and compelled to serve as conjugal partners to AFRC soldiers. They were often abducted in circumstances of extreme violence, compelled to move along with the fighting forces from place to place, and coerced to perform a variety of conjugal duties including regular sexual intercourse, forced domestic labour such as cleaning and cooking

67 UNFPA, Forms of Gender-based Violence and Their Consequences, http://web.unfpa.org/intercenter/violence/gender2f.htm (last visited June 23, 2013). 68 Id. 69 Forced marriages are even subject of debate without being part of an armed conflict or complicated situation but when its part of a culture that set patterns and roles in men and women´s lives.

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for the “husband,” endure forced pregnancy, and to care for and bring up children of the “marriage¨[...] [F]orced marriages which involve the abduction and detention of women and girls and their use for sexual and other purposes is clearly criminal in nature [...] The Appeals Chamber finds that the evidence before the Trial Chamber established that victims of forced marriage endured physical injury by being subjected to repeated acts of rape and sexual violence, forced labour, corporal punishment, and deprivation of liberty. […] In cases where they became pregnant from the forced marriage, both they and their children suffered long-term social stigmatisation [...] In assessing the gravity of forced marriage in the Sierra Leone conflict, the Appeals Chamber has taken into account the nature of the perpetrators’ conduct especially the atmosphere of violence in which victims were abducted and the vulnerability of the women and girls especially those of a very young age. Many of the victims of forced marriage were children themselves.70

After reading this passages it is not complicated to understand the link between a forced marriage and a possible, more likely to happen, forced pregnancy.

70UN PEACEKEEPING BEST PRACTICES SECTION, supra note 51, at 61.

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CHAPTER III

FORCED PREGNANCY

The aim of the present paper is to assess the crime of forced pregnancy under the ICC.

In this respect, and to have a better understanding of the topic, we may take into consideration

some authors criteria:

Although the inclusion of forced pregnancy as a crime under international criminal law was seen as a positive step for the protection of women in conflict zones, the high level of intent that is required in order to demonstrate that forced pregnancy has occurred seems to indicate that the crime will be difficult to prosecute successfully should a case eventually come before the ICC.71

DRAKE states that this has been the reason why forced pregnancy has yet to be charged

and that the multiple levels of intent seem to suggest that the crime of forced pregnancy is

targeted more at preventing the perpetration of ethnic crimes than at preventing crimes aimed

at violating women.72

3.1 Forced Pregnancy as an act of genocide, offence under Article 6(d) of

the Statute

71 Alyson M. Drake, Aimed at Protecting Ethnic Groups or Women? A look at Forced Pregnancy Under the Rome Statute, 596 WM. & MARY J. WOMEN & L. 595 (2012), http://scholarship.law.wm.edu/wmjowl/vol18/iss3/6. 72 Id., at 596. The author explains that this is particularly evident when one compares the elements of forced pregnancy under the Rome Statute against those for rape

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The development of Article 6 of the ICC Statute has an interesting history. At first in

the ILC Draft Statute of 1994 we could not find a definition of “genocide” as we find in the

1998 text:

For the purpose of this Statute, “genocide” means any of the following acts committed with intent to destroy73, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.74

SCHABAS75 indicates that article 6 reproduces the text of Article II76 of the Convention for the

Prevention and Punishment of the Crime of Genocide77. Even though the text was changed

several times, the idea to retain this concept, says the author, was strongly supported by the

Report of the Ad Hoc Committee of 1995 and in the Report of the Preparatory Committee of

1996. Finally, it was taken at the Diplomatic Conference without any objection and during the

Rome Conference no discussion in substance took place.78

In this sense, the author says that the travaux préparatoires of this Convention was the

principal source for interpretation of the definition at the time of the Rome Statute was

adopted; even though the corpus of judicial was remarkable slim. He also named that the ICJ

had indicated that the definition reflects customary law.

After looking at this historical approach it is crucial to stand out that in our particular case of

study genocide is committed by imposing measures intended to prevent births, as an offence

73 SCHABAS states that the Preparatory Commission impose a contextual element that does not appear in the Convention itself: “The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction”. 74 UN GENERAL ASSEMBLY, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, available at: http://www.refworld.org/docid/3ae6b3a84.html. 75 Professor of International Law, National University of Ireland, Galway, Director of the Irish Centre for Human Rights. 76 Article II: In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group;(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; and, (e) Forcibly transferring children of the group to another group. 77 UN General Assembly, Prevention and punishment of the crime of genocide, 9 December 1948, A/RES/260, available at http://www.refworld.org/docid/3b00f0873.html. The General Assembly of the United Nations adopted this Convention on 9 December 1948. After obtaining the requisite twenty ratifications required by article XIII, the Convention entered into force on 12 January 1951. 78 WILLIAM A. SCHABAS in OTTO TRIFFTERER, COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT ¶143-147 (Second Edition, C.H Beck, Hart, Nomos 2008) (2002).

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under Article 6(d) of the Statute: “Imposing measures intended to prevent births within the

group”.79 If one want to relate this “prevention of births” to forced pregnancy, it is necessary

to find that this situation is done by making woman pregnant to prevent the births of sons and

daughters of their particular group. Likewise, FISHER explains that when reproduction is used

to proliferate members of one group and simultaneously to prevent the reproduction of

members of another, it is a form of destruction.80

We are conscious that there is a debate related to how is it possible to view the creation of

human life as genocidal? How is a group destroyed by the creation of individuals?81. In this

sense, we may observed another gender- based discrimination when it is stated that ethnic

identity is based, principally, on the ethnicity of the father.

SCHABAS indicates that imposing measures intended to prevent births within the group is one

of two forms of biological genocide contemplated by Article 6 of the Rome Statute. The

travaux préparatoires of Article II para. D of the 1948 Convention, suggests that such

measures could include sterilization, compulsory abortion82, segregation of the sexes and the

obstacle to marriage.83

During hearings before the ICTY, witness CHRISTINE CLEIRIN, a member of the Commission

of Experts, reviewed the issue of sexual assault in the former Yugoslavia.

She was asked if rape was used systematically to change the ethnic character of the

population, specifically, by impregnating women. Even though, she indicated that there was

no enough information about it but that was possible that it had happened.84

It is also significant to mention that in the judgment on the case Akayesu of the ICTR, the

Court ruled on the issue in question:

79 Elements of the Crime: 1. The perpetrator imposed certain measures upon one or more persons; 2. Such person or persons belonged to a particular national, ethnical, racial or religious group; 3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such; 4. The measures imposed were intended to prevent births within that group; and, 5. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction. (International Criminal Court (ICC), Elements of Crimes, 2011, available at http://www.icc-cpi.int/NR/rdonlyres/336923D8-A6AD-40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf). 80 Robyn Charli Carpenter, Surfacing Children: Limitations of Genocidal Rape Discourse, Volume No. 22, HUMAN RIGHTS QUARTERLY L.J., 120-121 (May 2, 2000). 81 Id., at 218 and 222. 82 SCHABAS, supra note 78, at 153: Adolph Eichmann was tried, pursuant to an Israeli law derived from the Convention, on a charge of “devising measures intended to prevent child-bearing among the Jews”. The Court said “he devised measures the purpose of which was to prevent child-bearing among Jews by his instruction forbidding births and for the interruption of pregnancy of Jewish women in the Theresin Ghetto with the intent to exterminate the Jewish people”. 83 See U.N. Doc E/623/Add.2; U.N. Doc E/447 p. 26; U.N. Doc A/C.6/SR.82. 84 SCHABAS, supra note 76, at 154.

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For purposes of interpreting Article 2(2)(d) of the Statute, the Chamber holds that the measures intended to prevent births within the group, should be construed as sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes and prohibition of marriages. In patriarchal societies, where membership of a group is determined by the identity of the father, an example of a measure intended to prevent births within a group is the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother's group. […] Furthermore, the Chamber notes that measures intended to prevent births within the group may be physical, but can also be mental. For instance, rape can be a measure intended to prevent births when the person raped refuses subsequently to procreate, in the same way that members of a group can be led, through threats or trauma, not to procreate.85

Despite the general ideas of this criteria are coherent with what it could be consider as

genocidal act, I fully agree with MARKOVIC, when mentioning that to treat forced pregnancy

as genocide is to substantiate the myth that identity is determined solely by the ethnicity of

the father.86 Also, it is important to take into consideration the analysis of some authors that

estimate that the Rome Statute, geared at protecting ethnic groups rather than women:87

Forced pregnancy inflicts very real pain on individual women, but it is only genocide to the extent courts wish to endorse the flawed patriarchal assumptions of the attacking population.88

If the ICC uses this standard will validate ideas like: the newborn is a child of the enemy; the

ethnic group is the object of protection; and/or that the mother has nothing to do with the

child´s genetic components.

3.2 Forced Pregnancy as a crime against humanity, offence under Article 7

(g) of the Statute

BOOT indicates that the crime against humanity proved to be one of the most difficult

and controversial to draft. This author indicates that as with the other crimes of sexual

85 Prosecutor v. Akayesu, Case No. ICTR-96-4, Judgment ¶ 507-508. (September 2, 1998). 86 Markovic, Vessels of Reproduction: Forced Pregnancy and the ICC, Mich. St. J. Int'l L. (2007-2008). 87 See infra in the section of Conclusions. 88 Markovic, supra note 86, at. 458.

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violence, it was included only after concerted efforts by civil society, in particular, the

Women´s Coalition for Gender Justice, to overcome opposition by certain states.89

In the text of 1998 it is stated that crimes against humanity are committed when acts as part of

a widespread or systematic attack (with knowledge of the attack) are directed against any

civilian population90 and include; murder; extermination; enslavement; deportation or forcible

transfer of population; imprisonment or other severe deprivation of physical liberty in

violation of fundamental rules of international law; torture; rape, sexual slavery, enforced

prostitution, forced pregnancy91, enforced sterilization, or any other form of sexual violence

of comparable gravity; persecution against any identifiable group or collectivity on political,

racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds

that are universally recognized as impermissible under international law, in connection with

any act referred to in this paragraph or any crime within the jurisdiction of the Court; enforced

disappearance of persons; apartheid; and, other inhumane acts of a similar character

intentionally causing great suffering, or serious injury to body or to mental or physical health.

The same provision develops the concept of “Forced pregnancy”92 means the unlawful

confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic

composition of any population or carrying out other grave violations of international law. It is

stressed that this definition shall not in any way be interpreted as affecting national laws

relating to pregnancy (Article 7 (2)(f)).

89 MACHTELD BOOT in OTTO TRIFFTERER, COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT 255 (Second Edition, C.H Beck, Hart, Nomos 2008) (2002). 90 2. For the purpose of paragraph 1: (a) “Attack directed against any civilian population” means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack; 91 Elements of the Crime: 1.The perpetrator confined one or more women forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law; 2. The conduct was committed as part of a widespread or systematic attack directed against a civilian population; and, 3. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. (International Criminal Court (ICC), Elements of Crimes, 2011, available at http://www.icc-cpi.int/NR/rdonlyres/336923D8-A6AD-40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf). 92 There are opposite views of the subjects for instance see: “Three Predictable Problems at the Commission on the Status of Women” by Janice Shaw Crouse, available at http://www.cwfa.org/articledisplay.asp?id=12516&department=BLI&categoryid=reports. The author states that the attempt to push "reproductive health services" or "reproductive health rights" - terms that the left has admitted refers to abortion - rather than the term "reproductive health care" (the health care and hygiene that women need to remain healthy during pregnancy) is not unusual. She says that new language has popped up, giving the example of "Forced pregnancy" opening the door to accept abortion.

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When talking about the concept of “forced”, BOOT indicates that it does not necessarily

implies the use of violence but includes any form of coercion and that any form of captivity

negates consent.93

I agree with MARKOVIC when mentioning that prosecuting this offence is problematic when

proofing actus reus because it is often a crime committed in isolation and when an important

element of the crime “the confinement” could occur far away from the original attack.94

Furthermore, this attack must be pursuant to or in furtherance of a State or organizational

policy, known by its difficulty to be proven. The author gives the example of Bosnia, where

there were documented incidents of this kind of crimes, but they did not appear to be tied to

any official Serbian policy.95

In this sense, an amendment around the “attack” requirement could be successful to the aim of

justice.

3.3 Forced Pregnancy as a war crime, offences under Article 8 (2)

(b) (xxii) and (e) (vi) of the Statute

COTTIER establishes that the Rome Statute is the first international legally binding

instrument explicitly prohibits forced pregnancy, and criminalizes it as a war crime.96 In this

respect, war crimes are developed in Article 8 of the ICC Statute.

It is stated that the Court shall have jurisdiction in respect of war crimes in particular when

committed as part of a plan or policy or as part of a large-scale commission of such crimes.

Forced pregnancy as one of these types of violations is provided in two senses. First, under

Article 8 (2) (b) (xxii) 97 it is indicated that for the purpose of the Statute, forced pregnancy

could be consider a war crime involving serious violations of the laws and customs applicable

in international armed conflict, within the established framework of international law, and 93 BOOT, supra note 89, at 256. 94 Markovic, supra note 86, at 450. 95 Id., at footnote 80. 96 MICHAEL COTTIER in OTTO TRIFFTERER, COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT 448 (Second Edition, C.H Beck, Hart, Nomos 2008) (2002). 97 Elements of the crime: 1. The perpetrator confined one or more women forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law; 2.The conduct took place in the context of and was associated with an international armed conflict; and, 3.The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (International Criminal Court (ICC), Elements of Crimes, 2011, available at http://www.icc-cpi.int/NR/rdonlyres/336923D8-A6AD-40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf).

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constituting a grave breach of the Geneva Conventions are included. On the other hand,

Article 8 (2) (e) (vii)98 establishes that committing forced pregnancy also constituting a

serious violation of article 3 common to the four Geneva Conventions is another serious

violation of the laws and customs applicable in armed conflicts not of an international

character, within the established framework of international law.

Due to the distinction between the context of international and non-international armed

conflict that this provision states, it is worth mentioning that MARKOVIC analyzes the lack of

jurisdiction of the ICC when it comes to the absence of two hostile parties: 99

This is regrettable from the perspective of justice, but the ICC only has jurisdiction over persons "for the most serious crimes of international concern." Presumably domestic courts could prosecute war crimes such as forced pregnancy that occur during internal conflicts, whether there are two opposing parties or not, but it remains to be seen how many governments will follow the ICC's lead and criminalize forced pregnancy.100

We certainly share the idea of that the elements of this crime are even laxer from those of

forced pregnancy as a crime against humanity and that it exclude the prosecution of “free

lancers”, however it could be possible to asses, as the author specifies, to take into

consideration the jurisprudence available (Prosecutor v. Tadić) and then the ICC could find

that criminal conduct is associated with an armed conflict if the criminal act is not unrelated

to the armed conflict and was not done for the perpetrators purely personal motives.101

98 Elements of the crime: 1. The perpetrator confined one or more women forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law; 2. The conduct took place in the context of and was associated with an armed conflict not of an international character and, 3. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. (International Criminal Court (ICC), Elements of Crimes, 2011, available at http://www.icc-cpi.int/NR/rdonlyres/336923D8-A6AD-40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf). 99 Markovic, supra note 86, at 451. 100 Id., at. 451-452. 101 Id., at. 452 citing the respective case.

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CONCLUSIONS

Pregnancies product of sexual violence are a harsh reality the world has to face. As

MAINIL indicates, examples of forced pregnancy are not difficult to find: Muslim women in

Bosnia were impregnated by Serbs and held captive until late term to prevent them from

aborting. In Kosovo around 100 (it is believed there were much more) babies conceived in

rape were born in January. In Congo-Brazzaville 10 percent of two thousand violated women

reported pregnancies. In Liberia, the country registered children fathered by peacekeepers

from the United Nations and the Economic Community of Western African Monitoring

Group (ECOMAG). In Darfur, impregnated rape victims are not only rejected by their

families, but also arrested for “illegal” pregnancies (occurring outside of the context of

marriage.)102

PROVOST, referring to Humanitarian and Human Rights law, indicates that each system

teaches us, hard and unpleasant lessons about human behavior in war and in peace. Each also

captures the human potential for learning and hand us tools to attempt to bring about change

but what I like the most is that he establishes that both are lessons which we must go on

learning again and again.103 Therefore, the analysis presented above, is only a demonstration

of this atrocities and intent to assess them.

Although sexual violence has been tackle by the Ad hoc Tribunals and the ICC, we

consider necessary to point out some conclusions in relation to forced pregnancy that could

assist the analysis of the topic:

1. Human Rights Law and International Criminal Law cannot be treated in opposition.

As one complements the other, it becomes a duty to comply to the international

commitments around women´s human rights established in several international

102 MARIE MAINIL, ON WAR BABIES AND THE POLITICS OF IDENTITY 4 (New School for Social Research, 2007). 103 RENÉ PROVOST, INTERNATIONAL HUMAN RIGHTS AND HUMANITARIAN LAW, 350 (Cambridge University Press 2002).

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human rights instruments and declarations, in order to assess sexual violence against

girls and women, especially the case of forced pregnancy which need its own

treatment.104

2. As mentioned, it is necessary to make the proper amendments to the provisions of

forced pregnancy of the Rome Statute, for example:

-Remove the “affecting the ethnic composition” language in the provision around

genocide;

-Change the high level of intent found in the elements of war crime and crime against

humanity;

-Loosened the “attack” requirement in the elements of the provision of crime against

humanity; and,

-Revising the language used in general in the Statute with the objective of avoiding

undermining the goal to protect women from violence.105

3. Challenges around daily practice are very complicated. The issue of gathering sensible

evidence (including victim´s statements), the difficulty towards dealing with victims

of forced pregnancy. Investigators and all the functionaries dealing with each case

must have the proper training to do so.

4. Judgments and decisions of the former tribunals about sexual violence, specifically

involving rape, may “lend a hand” to the ICC to establish new and progressive

jurisprudence about the subject.

5. ICC judges have the responsibility/duty/privilege to develop not only the term

“gender” in their pronouncements, but to successfully tackle sexual violence and

forced pregnancy. In this sense, forced pregnancy must be assessed through a “gender

perspective” avoiding judgmental and discriminative approaches.

Judges shall also tackle the issues as cumulative convictions and modes of liability

(ex. JCE) and find foundation in the Ad Hoc Tribunals in order to analyze cases

related to forced pregnancy.

6. The ICC has a major challenge when complying with the Rome Statute together with

the UN Women and OHCHR guidance, and the UN’s Basic Principles and Guidelines

on the Right to a Remedy and Reparation for Victims of Gross Violations of

International Human Rights Law and Serious Violations of International Humanitarian

Law. Reparations include restitution, compensation, rehabilitation, satisfaction and 104 For instance, it is crucial to take into consideration the world conferences on women that took place in Mexico (1975), Copenhagen (1980), Nairobi (1985) and Beijing (1995). Also, the statements of the Commission on the Status of Women and of course the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child. 105 Drake, supra note 71, at 622.

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guarantees of non-repetition. As it is stated by UN Women that most programmes

have implicitly discriminated against women by leaving out reparations for

reproductive violence, including forced pregnancy, forced sterilization and forced

abortions. That is the reason why gender perspective is needed along with special care

to survivors.

Judges must be analyzed this subject taking into account sexual and reproductive

rights of women106 and the physical and psychological health of the victims.107

7. In the same line, it is crucial to have a deep estimation of the children, product of this

crime; find ways to prevent maternal suicide, infanticide, stigmatization, neglect,

abuse and discrimination108 in case the mother decides to keep the baby.

8. The creation of a Digest of Gender Case-Law could be helpful to students, scholars,

lawyers and judges interested in the topic.

9. It is also important to find more commitment from the member States in order to

create or modify laws, policies, and social and cultural norms that violate women´s

human rights, to prevent this kind of crimes.

10. In order to satisfy and have a proper approach to peace, security, reconciliation and

peace-building, the ICC and every person dealing with sexual crimes, must not only

comply with the established the protective provisions of the Rome Statute and the

Rules, but they must give a step further by capacity building (working with national

institutions and local communities) and having an inclusive advocacy for victims in

the assessment of gender justice and transitional justice.

From my point of view, these proposals should not be taken lightly. One cannot put aside that

States have the responsibility and obligation to respect, protect and to fulfill human rights.109

106 This is a topic that is not easy, the issue of abortion is at stake generally versus domestic criminal law provisions that establishes it as a crime. As GABLE says, despite the progress in reproductive health in recent years reproductive rights and reproductive health remain insufficiently realized around the world. One cannot forget the link between human rights and reproductive health. 107 See ICC, Women's Initiatives for Gender Justice request for leave to participate in reparations proceedings, ICC-01/04-01/06-2853 29-03-2012 1/17 CB T (March 28 2012) and the Gender Report Card available at http://www.iccwomen.org/documents/Gender-Report-Card-on-the-ICC-2012.pdf. 108 Soh Sie Eng Jessie', Forced Pregnancy: Codification in the Rome Statute and its Prospect As Implicit Genocide, 4 NZJPIL 311 (2006). 109 OLIVIER DE SCHUTTER, INTERNATIONAL HUMAN RIGHTS LAW, Cases, Material, Commentary, 242 (Cambridge University Press, 2010). A major conceptual breakthrough took place in the mid 1980´s, when Asbjorn Eide, as the Rapporteur to the then UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, proposed that four ’layers’ of the State obligations could be discerned, defined as an obligation to respect, and obligation to protect, an obligation to ensure, and a obligation to promote (The Right to adequate Food as a Human Right, Report prepared by Mr. A. Eide E/CN.4/Sub.2/1983/25(1983). Later this was revised to become a tripartite division of human rights obligations of States, distinguishing between the obligation to respect, to protect, and to fulfill Human Rights. Henry Shue proposed that States have three sets of duties (interdependence of duties):

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In this sense, the International Community shouldn’t fall into the traps explained by

ZAFFARONI and shall fully arrogate a real gender approach and mainstreaming to the

assessment to forced pregnancy and all violations of sexual integrity for that matter.

Finally, it is important to establish that there is a personal motivation to work on gender

issues, especially in the International Criminal Law area. “Putting an end to impunity” seems

to be a common phrase used by lawyers, judges, and in general by justice “fighters and

heroes”. The thing is that impunity is a big word for traumatized girls and women that only

want to put sexual violence behind and hopefully have a “normal” life with out being

discriminated.

The case of forced pregnancy has implicit the idea of the occupation of females, as

similar as the occupation of a territory, provides the idea that girls and women are “things”

and subjects to humiliation. The horrendous crimes that are committed against girls and

women, despite if it is during peacetime or an armed conflict should be a matter of constant

struggle and debate to eradicate it.

I. To avoid depriving. II. To protect from deprivation (1) by enforcing duty (I) and (2) by designing institutions that avoid the creation of strong incentives to violate duty (I). III. To aid the deprived (1) who are one´s special responsibility; (2) who are victims or social failures in the performance of duties (I), (II-(1)), and (3) who are victims of natural disasters. p. 242

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ARTICLES Banks Angela M., Sexual Violence and International Criminal Law: An Analysis of the Ad Hoc Tribunal's Jurisprudence & the International Criminal Court's Elements of Crimes (Faculty Publications, 2005), available at: http://scholarship.law.wm.edu/facpubs/305. Burke-White William, A Wife Accused of War Crimes: The Unprecedented Case of Simone Gbagbo, THE ATLANTIC MAGAZINE, (Dec. 3, 2012, 12:42 PM ET), available at http://www.glidemagazine.com/articles/39408/how-to-play-guitar-like-a-pro.html. Carpenter Robyn Charli, Surfacing Children: Limitations of Genocidal Rape Discourse, Volume No. 22, HUMAN RIGHTS QUARTERLY L.J. (May 2, 2000). Cole Alison, Making the perpetrators of mass sexual violence pay: International justice for gender-related crimes (2011) available at:

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http://www.osisa.org/sites/default/files/making_the_perpetrators_of_mass_sexual_violence_pay-alison_cole.pdf. Drake Alyson M., Aimed at Protecting Ethnic Groups or Women? A look at Forced Pregnancy Under the Rome Statute, WM. & MARY J. WOMEN & L. 595 (2012), available at; http://scholarship.law.wm.edu/wmjowl/vol18/iss3/6. Fisher Stobhán K., Occupation of the womb: Forced Impregnation as Genocide, Duke Law Journal, available at: http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3320&context=dlj. Gable Lance, Reproductive Health as a Human Right, Wayne State University Law School Legal Studies Research Paper Series (June 16, 2011) available at: http://www.ssrn.com/link/Wayne-State-U-LEG.html Glasius Marlius, expertise in the cause of justice: global civil society influence on the statute for an international criminal court (2002) available at: http://www2.lse.ac.uk/internationalDevelopment/research/CSHS/civilSociety/yearBook/chapterPdfs/2002/chapter6.pdf. Haffajee Rebecca L., Prosecuting Crimes of Rape and Sexual Violence at the ICTR: The Application Of Joint Criminal Enterprise Theory, available at: http://www.law.harvard.edu/students/orgs/jlg/vol291/haffajee.pdf. Maier Nicole Brigitte, The Crime of Rape Under the Rome Statute of the ICC: with a special emphasis on the jurisprudence of the Ad Hoc Criminal Tribunals (2011), available at: http://ojs.ubvu.vu.nl/alf/article/view/209. Maistre Magali and Rangel Nicole, Analytical and Comparative Digest of the ICTY, ICTR and SCSL jurisprudence on International Sex Crimes and “Gender Jurisprudence and International Criminal Law Project”, available at http://www.genderjurisprudence.org/index.php/digests. Markovic Milan, Vessels of Reproduction: Forced Pregnancy and the ICC, Mich. St. J. Int'l L. (2007-2008). Oosterveld, Valerie, Definition of Gender in the Rome Statute of the International Criminal Court: A Step Forward or Back for International Criminal Justice, HARVARD H.R.J., Vol. 18, 55-84 (2005). Oosterveld Valerie, The Gender Jurisprudence of the Special Court for Sierra Leone: Progress in the Revolutionary United Front Judgments, (November 21, 2010), available at http://www.lawschool.cornell.edu/research/ILJ/upload/Oosterveld-final.pdf. Shaw Janice, Three Predictable Problems at the Commission on the Status of Women, available at http://www.cwfa.org/articledisplay.asp?id=12516&department=BLI&categoryid=reports.

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INTERNATIONAL MATERIALS

ICC documents Rome Statute of the International Criminal Court, 2187 U.N.T.S. 90, entered into force July 1, 2002. International Criminal Court (ICC), Rules of Procedure and Evidence, U.N. Doc. PCNICC/2000/1/Add.1 (2000). International Criminal Court (ICC), Elements of Crimes, 2011, available at http://www.icc-cpi.int/NR/rdonlyres/336923D8-A6AD-40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf. The Prosecutor v. Simone Gbagbo, 2012, ICC, February/11-January /12. Women's Initiatives for Gender Justice request for leave to participate in reparations proceedings, ICC-01/04-01/06-2853 29-03-2012 1/17 CB T (March 28 2012) Gender Report Card 2012 available at http://www.iccwomen.org/documents/Gender-Report-Card-on-the-ICC-2012.pdf.

International law cases The Prosecutor v. Furundlija, Case No. IT-95-17/1-T, Judgment, 139 (Dec. 10, 1998). The Prosecutor v. Akayesu, Case No. ICTR-96-4, Judgment (September 2, 1998). Armed Forces Revolutionary Forces (AFRC) case (Prosecutor vs Brima and 2 others, SCSL-04-16). Civil Defense Forces (CDF) case (Prosecutor vs. Fofana and Kondewa, SCSL-04-14). Revolutionary United Front (RUF) CASE (Prosecutor vs. Sesay and 2 others, SCSL-04-15).

Domestic Court´s Pronouncements (Ecuador) Criminal Chamber of Carchi, September 11, 1974. First Chamber of the Superior Court of Quito, April 7, 1975. Second Criminal Chamber of the Supreme Court of Justice, April 27, 2004 Second Criminal Chamber of the Supreme Court of Justice September 7 2004.

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United Nations Sources Convention on the Elimination of All Forms of Discrimination against Women, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into force Sept. 3, 1981. Convention on the Rights of the Child, G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force Sept. 2, 1990. SC Res. 1820, UN Doc. S/RES/1820 (June 19, 2008). Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (The Palermo Protocol) UN Res. 55/25 of 15/11/2000. UN Peacekeeping Best Practices Section (PBPS), Division for Policy, Evaluation and Training (DPET), Review Of The Sexual Violence Elements Of The Judgments Of The International Criminal Tribunal For The Former Yugoslavia, The International Criminal Tribunal For Rwanda, And The Special Court For Sierra Leone In The Light Of Security Council Resolution 1820 (2010), available at: http://www.unrol.org/files/32914_Review%20of%20the%20Sexual%20Violence%20Elements%20in%20the%20Light%20of%20the%20Security-Council%20resolution%201820.pdf. UN General Assembly, Prevention and Punishment of the crime of genocide, 9 December 1948, A/RES/260.

WEBSITES Interactive Population Center, Violence against girls and women, http://web.unfpa.org/intercenter/violence/gender2g.htm. ICTY, Crimes of Sexual Violence, “In numbers”, available at http://www.icty.org/sid/10586. UNFPA, Forms of Gender-based Violence and Their Consequences, available at: http://web.unfpa.org/intercenter/violence/gender2f.htm.

ACADEMIC PAPERS Mainil Marie, On War Babies and the Politics of Identity, New School for Social Research (2007).

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ANNEX 1 The ICTY provides clear information about cases that include sexual violence ( available at

http://www.icty.org/sid/10586):

Accused Name

Sentence (for all convictions incl. those for sexual violence)

Individual responsibility under Article 7(1)

Superior responsibility under Article 7(3) Case Name

Predrag Banović 8 years’ imprisonment ✓ Banović

Miroslav Bralo 20 years’ imprisonment ✓ Bralo

Radoslav Brđanin 30 years’ imprisonment ✓ Brđanin

Ranko Češić 18 years’ imprisonment ✓ Češić Anto Furundžija 10 years’ imprisonment ✓ Furundžija

Momčilo Krajišnik 20 years’ imprisonment ✓ Krajišnik

Radislav Krstić 35 years’ imprisonment ✓ Krstić

Dragoljub Kunarac 28 years’ imprisonment ✓

Kunarac et al.

Radomir Kovač 20 years’ imprisonment ✓

Zoran Vuković 12 years’ imprisonment ✓

Dragoljub Prcać 5 years’ imprisonment ✓

Kvočka et al. Milojica Kos 6 years’ imprisonment ✓

Mlađo Radić 20 years’ imprisonment ✓ Milan Martić 35 years’ imprisonment ✓ Martić Hazim Delić 18 years’ imprisonment ✓

Mucić et al. Zdravko Mucić 9 years’ imprisonment ✓ ✓

Esad Landžo 15 years’ imprisonment ✓ Dragan Nikolić 20 years’ imprisonment ✓ Nikolić

Biljana Plavšić 11 years’ imprisonment ✓ Plavšić

Ivica Rajić 12 years’ imprisonment ✓ Rajić

Duško Sikirica 15 years’ imprisonment ✓ ✓

Sikirica et al. Damir Došen 5 years’ imprisonment ✓ ✓

Dragan Kolundžija 3 years’ imprisonment ✓ ✓

Milan Simić 5 years’ imprisonment ✓ Simić

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Accused Name

Sentence (for all convictions incl. those for sexual violence)

Individual responsibility under Article 7(1)

Superior responsibility under Article 7(3) Case Name

Milomir Stakić 40 years’ imprisonment ✓ Stakić

Duško Tadić 20 years’ imprisonment ✓ Tadić

Stevan Todorović 10 years’ imprisonment ✓ Todorović

Dragan Zelenović 15 years’ imprisonment ✓ Zelenović

ANNEX 2

In the Review of the Sexual Violence Elements of the Judgments of the ICTY, ICTR and SCSL in the Light of

Security Council Resolution 1820, we find the detail of the following cases: AKAYESU CASE (Prosecutor v Akayesu, ICTR-96-4) BAGOSORA CASE (Prosecutor vs Bagosora and 3 others, ICTR-98-41 GACUMBITSI CASE (Prosecutor vs Gacumbitsi, ICTR-2001-64) KAJELIJELI CASE (Prosecutor vs Kajelijeli, ICTR-98-44A) KAREMERA CASE (ICTR-97-24) KAMUHANDA CASE (Prosecutor vs Kamuhanda, ICTR-99-54A) KAYISHEMA CASE (Prosecutor vs Kayishema and Ruzindana, ICTR-95-1) MUHIMANA CASE (Prosecutor vs Muhimana, ICTR-95-1B) MUNYAKAZI CASE (ICTR-97-36A) MUSEMA CASE (Prosecutor vs Musema, ICTR-96-13) NAHIMANA CASE (Prosecutor vs Nahimana, Barayagwiza and Ngeze, ICTR-99-52) NIYITEGEKA CASE (Prosecutor vs Niyitegeka, ICTR-96-14) NTAKIRUTIMANA CASE (Prosecutor vs Elizaphan and Gerard Ntakirutimana, ICTR-96 10 and ICTR-96-17) RUKONDO CASE (Prosecutor vs Rukondo, ICTR-2001-70) RUTAGANDA CASE (Prosecutor vs Rutaganda, ICTR-96-3) SEMANZA CASE (Prosecutor vs Semanza, ICTR-97-20)110

UN PEACEKEEPING BEST PRACTICES SECTION (PBPS), supra note 51 , at 50-57 .