Gender Gets a Raised Profile at the ICC

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 addressto 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.

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 Nyiramasuhukocase 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.

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