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| Besouda and Inder at Coalition Reception for the New ICC Prosecutor. Photo courtesy of CICC |
What has caught my attention in recent
months is that gender issues have been given a raised profile at the
International Criminal Court. Since Fatou Bensouda’s rise to chief prosecutor,
the OTP has started placing important emphasis on addressing and prosecuting
sexual and gender based crimes. It has also appointed a new gender advisor, Brigid Inder. Inder brings with her years of experience in gender related
violence. She is mostly well known through the human rights organization Women’s Initiatives for Gender
Justice, which regularly publishes gender reports on situations of armed
conflict. The organization advocates for the accountability of gender crimes through
the International Criminal Court.
Inder has stressed the crucial importance
of prosecuting gender crimes with the help of the ICC. In a recent address
to the Court she made clear that the OTP would need to alter its strategy to
enhance its effectiveness. Part of this strategy means undertaking
investigations and prosecutions into gender-based crimes and the appointment of
more gender analysts and specialists within the organ itself. What I very much like about her
approach, is her recognition and involvement of experienced professionals at the
Court who understand and who have dealt with gender related crimes. The ‘cherry
on the cake’, would be if such professionals were trained or recruited on the
basis of their cultural knowledge as well, given the contexts in which they
operate. Her approach in accessing women and victims through the use of local
organisations, credible enough to understand the issues at play, is to be
commended. Such an investment is important, as issues of rape and sexual
violence, remain often of the time, a private matter and generally unspoken of,
within many African communities. Understanding the culture and taboos at play
are therefore essential if victims are to speak out. So in other words,
building up the support of local organizations, equipped with adequate cultural
knowledge is a step in the right direction if the Court is to increase effectiveness
and legitimacy in each of its situation countries.
Separate to this, I’m also wondering if
this sudden focus on gender is somehow related to the prosecution of Simone
Gbagbo, the wife of former President Laurent Gbagbo now at the International
Court? The case is attention grabbing because she is the first woman to be
prosecuted by the ICC. The counts against her include murder, rape and other forms
of sexual violence and persecution as crimes
against humanity, committed in Cote d Ivoire between December 2010 and April 2011. The attention grabbing part is that she is a woman firstly, and secondly that she is being held accountable for the crime of rape. The words 'woman accountable for rape' are almost in antithesis to each other and in most people's minds don't usually go together. You can refer to the arrest
warrant here.
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| Simone Gbagbo |
Generally, the reluctance by International
Tribunals to prosecute sexual crimes such as rape is understandable given, the
flimsy evidence often available, the reluctance of victims and witnesses to
speak out. Often of the time, there is also the technical difficulty involved in proving
the elements of the crime beyond a reasonable doubt. It may also be, that by
prosecuting a woman for the crime of rape and sexual crimes, that the
Prosecutor and Court are departing from the social construction of the crime as
currently perceived by the international community. One of the dominant discourses on the crime of rape during a war or conflict situation, is the understanding that men commit or instigate the crime and that
women are almost always its victims. Dominant discourses on what constitutes
rape are important since they can influence the treatment and perception of both
victim and perpetrator by the Court and the public.
A very good example of this was seen in the
Prosecutor v Pauline Nyiramasuhuko
case at the ICTR. This is the only one international
case where a woman was prosecuted for the crime of rape and was given a
sentence of life imprisonment under the doctrine of superior responsibility.
Mark Drumbl has written a fascinating article on this case entitled “She makes me
ashamed to be a woman’: The Genocide Conviction of Pauline Nyiramasuhuko,
2011’”where he delves into the intersections between gender and justice
during the trial proceedings and in the public and media portrayal of
Nyiramasuhuko as an accused woman.
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| Pauline Nyiramasuhuko |
The observations he makes are important.
Firstly he points to the fact that the Nyiramasuhuko case became such a
sensitive case due to the fact that she was a woman, that the issue of gender
during the trial process was unspoken of and almost avoided on purpose. This degendering or gender neutrality was used mainly to create the impression that the Chamber was unbiased in its
approach to the defendant as to all defendants, whether female or male. However
the failure to address the issue of gender , had the effect of avoiding the
reality of the situation. Furthermore, the role of ‘femininities and masculinities’
in such a conflict situation were not examined and discussed for future learning purposes,
according to Drumbl.
Secondly Drumbl draws attention to the role
of the media and the image represented to the masses of the defendant. She was
portrayed as a 'worst perpetrator' because of her gender. The characteristics often
highlighted by the press included her role as a mother, her intellectual status
(she was a lawyer) and the position she occupied in Rwandan society. The
emphasis on the aforementioned factors placed her in a further disadvantaged
position than if the perpetrator were a man, thus possibly influencing the
sentence handed down to her. In her case, life imprisonment.
Drumbl also draws attention to the fact
that international trials do not always imply “progress, justice or accuracy”.
In fact it is solely through the coverage and sensationalizing of the trial and her position
in Rwandan society as a woman, that Nyiramasuhuko’s crimes have gained the
attention afforded it. It is more than likely, that a similar scenario can be predicted for the Simone Gbagbo case, given her status as Gbagbo’s wife and the position
she occupied as a professional woman in Ivorian politics. I am sure that the
media will go on a frenzy sensationalizing this upcoming trial. We will have to wait and see! But it is exactly this media attention and influence that the Court should guard against.
While challenging the current discourse on
gender stereotypes is indeed something to be commended for, the objective of
each prosecution must still be kept in sight…bringing justice to the affected
community. The ICC prosecutions of the Gbagbo’s at this stage seem very
selective, with both of them out of the picture in Ivorian politics and their
opposition Quattara a free man. This will leave little or no room for the
crimes committed by current President Quattara to be investigated and let alone
punished if the Court does not intervene. But this is a separate issue which
you can read more about in a previous
post of mine.
Posted by Ingrid Roestenburg-Morgan
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