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#################################################################################En
ding Impunity for Gender Crimes under the International Criminal Court Barbara
Bedont, Assistant Coordinator, Democracy and Justice Program,#International Centre
for Human Rights and Democratic Development Katherine Hall Martinez, Deputy
Director, International Program,#Center for Reproductive Rights The Brown Journal
of World Affairs, Vol. VI, Issue 1: 65-85. Published 1999[T]hey brought her
fourteen-year-old son and forced him to rape her. . . . On [another] occasion, I
was raped with a gun by one of the three men. . . in the room. . . . Others 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 Introduction For millennia, women and girls
have suffered # HYPERLINK "http://www.crlp.org/ww_iss_violence.html" #rape#, sexual
slavery, forced pregnancy and other brutal forms of sexual and gender violence
during armed conflict. Like other forms of war related brutality, such violence is
often sanctioned, tolerated or ordered by military, paramilitary or other
governmental actors. Although the international community has made some strides in
outlawing and punishing atrocities committed during armed conflict through the
development of international humanitarian law, gender-based violence has been
consistently marginalized or dismissed as a natural consequence of war. The
international community's conclusion of a treaty in July 1998 to create a permanent
# HYPERLINK "http://www.crlp.org/rfn_99_07.html" \l "worldwide" #International
Criminal Court# (the ICC or the Court) to investigate and punish genocide, crimes
against humanity and war crimes in circumstances in which national authorities fail
to do so was indeed an important step forward for humankind. Women's rights
activists viewed the negotiations for the ICC as an historic opportunity to address
the failures of earlier international treaties and tribunals to properly delineate,
investigate, and prosecute wartime violence against women. Building on their
successes in drawing attention to atrocities suffered by women in recent conflicts
in Bosnia and Rwanda, women's rights advocates ensured that history did not pass
women by yet again. The recognition that rape and other forms of sexual violence
are among the most serious crimes under international humanitarian law was one of
many historic accomplishments of the July 1998 United Nations Diplomatic Conference
of Plenipotentiaries that negotiated the Rome Statute of the International Criminal
Court (Rome Statute). The Rome Statute's gender provisions are an encouraging
example of how the development of the international women's rights movement is
positively impacting international human rights and humanitarian law despite the
strong influence of conservative political forces. Part I of this article will
provide background on the negotiating context with respect to gender issues and the
effort of the international women's human rights movement to influence the Rome
Statute. In the succeeding three parts, the article will summarize the provisions
adopted under three broad categories of issues covered by the Rome Statute that
will affect the Court's ability to carry out justice for women. In each of these
parts, we include some discussion of the prior treatment of these issues under
international law, as well as the background and politics surrounding the adoption
of these provisions. In Part II, the article will summarize the Rome Statute's
codification of various acts constituting sexual and gender violence as the most
serious crimes under international humanitarian law. Part III will examine the
structural provisions ensuring that women participate in all levels of the ICC's
operations and requiring that among the ICC's staff there be adequate expertise for
dealing with sexual and gender violence. Part IV summarizes those provisions that

will aid in safeguarding the rights of victims of sexual and gender violence,
including those guaranteeing gender sensitive methodologies during investigation
and trial, as well as adequate protection of victims and witnesses. I. THE
NEGOTIATIONS ON GENDER ISSUES During the early stages of the drafting of the Rome
Statute, it became apparent that both governments and mainstream human rights
groups were paying little attention to gender issues. Cognizant of this, a group of
women's human rights activists began lobbying government delegations at the
February 1997 Preparatory Committee (PrepCom) meeting. These activists subsequently
founded the Women's Caucus for Gender Justice in the ICC2 with the objective of
ensuring a gender perspective throughout the Statute. The Women's Caucus rapidly
expanded its base of support to include, by the time of the Rome Diplomatic
Conference, approximately two hundred women's organizations from all regions of the
world. Women's Caucus members were active lobbying in their countries' capitals and
participating in the PrepComs and the Rome Diplomatic Conference. In many ways, it
was an opportune time to lobby for an "engendered" statute for an international
criminal tribunal. The achievements of the women's rights movement at the World
Conference on Human Rights, held in Vienna in 1993 (the Vienna Conference), the #
HYPERLINK "http://www.crlp.org/pr_98_1209womhr.html" #Fourth World Conference on
Women#, held in Beijing in 1995 (the Beijing Conference), as well as other fora,
gave the Women's Caucus authority for many of its proposals. At the Vienna
Conference, governments condemned gender-based violence and violence against women
in war situations and called on governments to integrate women's rights into the
mainstream of the # HYPERLINK "http://www.crlp.org/ww_advoc.html" #UN system#.3 The
Beijing Platform for Action committed governments to "integrat[ing] a gender
perspective in the resolution of armed or other conflicts and foreign occupation."4
At the same time, the recent conflicts in the former Yugoslavia and Rwanda, and the
publicized mass rapes committed during those conflicts, shocked the conscience of
the world and spurred the creation of the two Ad Hoc Tribunals. The issue of sexual
violence in war had therefore received much attention by the time of the Rome
Diplomatic Conference. As a result, the majority of states at the Rome Diplomatic
Conference supported the integration of gender provisions in the statute.5 The
Women's Caucus, nonetheless, had to contend with a well-organized opposition,
intent on undermining the Court's ability to appropriately address sexual and
gender crimes. This opposition consisted of an alliance between some anti-choice
groups, mostly from the U.S. and Canada, and a few delegations representing states
where religion is used to justify discriminatory treatment of women. These
delegations included the Vatican, and countries that followed its lead on certain
issues, along with a core group of Islamic states. These delegations considered the
proposals of the Women's Caucus for Gender Justice as a threat to their religious
beliefs. Although the Caucus' agenda was supported by a broad majority of
delegations, only a few states were willing to fight for it against the impassioned
minority opposition. Furthermore, the states which were consistently willing to
take a lead on gender issues, such as Canada, Australia, New Zealand, and Samoa, 6
found themselves on the defensive because of procedural obstacles in the
negotiations. Namely, the Rome Treaty Conference was committed to working through
the statute's provisions by consensus. This allowed the hostile states to obstruct
the efforts to address gender crimes within the Rome Statute by refusing to accept
wording favored by the majority, thereby forcing many provisions to be watered
down. This group of opponents focused on two fronts of attack. Firstly, as will be
discussed in more detail below, the hostile states were intent on undermining the
inclusion of the crime of "forced pregnancy" due to misleading linkages to the
issue of the legalization of abortion. Secondly, the hostile states opposed the use
of the term "gender" anywhere in the statute. 7 The Women's Caucus pushed for the
term "gender" as opposed to "sex" because the latter is restricted to the
biological differences between men and women, whereas gender includes differences
between men and women because of their socially constructed roles. Similarly,
"gender crimes" is preferable to "sexual violence" because it includes crimes which
are targeted at men or women because of their gender roles which may or may not
have a sexual element. Some Arab states objected to the term "gender," claiming the

term may be understood to include sexual orientation. However, their position on


this issue also served as their justification for obstructing many provisions
throughout the statute that promoted women's rights. The dispute regarding the
terminology threatened the inclusion of certain gender crimes, of a nondiscrimination clause, and of special protective
measures under the procedural provisions. The negotiations regarding the
definition of gender therefore became central to many other gender issues. A
definition of gender from the Report of the Secretary General to the Beijing
Platform for Action was circulated among those delegates negotiating this issue.
The Secretary General's definition acknowledged that the roles played by men and
women are contingent on the social and economic context and can vary accordingly. 8
Annex IV to the Beijing Platform for Action was also circulated to the delegates
which stated that for the purposes of that document, the word "gender" was intended
to be interpreted as it was in ordinary, generally accepted usage.9 Based in part
on these documents, the following provision was negotiated: "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."
10 As a result of this negotiated definition, the terms "gender" and "gender
crimes" were utilized in many provisions of the Rome Statute instead of the
narrower terms "sex" and "sexual violence." This was a significant victory,
firstly, because it continued the well-established practice of using this broader
concept in international instruments. The definition refers to "context of
society," and therefore, includes the sociological differences between men and
women. The second sentence, while somewhat tautological, suggests that the concept
cannot be expanded beyond its current understanding as set out in the first
sentence. The definition's acceptance was important because it cleared the way for
many other provisions, among them a Women's Caucus proposed non-discrimination
provision. The non-discrimination provision which was ultimately adopted states
that the application and interpretation of the law by the ICC must be consistent
with internationally recognized human rights, and be without adverse distinction
founded on gender, age, race, colour, language, religion or belief, political or
other opinion, national, ethnic or social origin, wealth, birth or other status. 11
This clause was essential to ensure that prosecutors, investigators, registrars,
and chambers of the Court fairly treat individuals involved in the ICC process. The
non-discriminatory clause will benefit both males and females, victims and accused
alike. The states hostile to gender issues threatened to remove the clause
completely because it included gender. It was sadly ironic that a group of Catholic
and Islamic delegations, in their zeal to marginalize gender issues, would endanger
a clause that would also protect individuals from religious discrimination. The
fact that such an important clause was threatened over the disagreement on gender
demonstrates how those states were more concerned with opposing gender provisions
than protecting other basic rights. Fortunately, the compromise reached on the
definition of gender saved this provision. In general, the negotiations regarding
the gender provisions illustrate the continuous struggle faced by those seeking to
advance women's rights. The Women's Caucus often found itself fighting to retain
concepts that had been well accepted in other international instruments, including
the Vienna Conference's Programme of Action and the Beijing Conference's Platform
for Action. However, unlike those non-binding human rights instruments, the Rome
Statute is a treaty that creates a permanent judicial body empowered to determine
individual criminal responsibility. As will be seen in the next sections describing
the negotiations on separate issues, when it came time for states to fulfill their
obligations under previous instruments, many states wavered in the face of
opposition from states hostile to women's equality. Few, if any, government
delegations would have been willing to expend the political capital needed to
secure the provisions described herein without the persistent lobbying efforts of
the Women's Caucus. Indeed, even the few willing to do so would not have been
successful without the pressure exerted by Women's Caucus members on governments in
every region of the world. In this way, the Women's Caucus proved to be an
essential catalyst in ensuring the integration of a gender perspective throughout

the Rome Statute. ##II. THE GENDER CRIMES IN THE ROME STATUTE The most significant
provisions of the Rome Statute regarding women's rights are contained in the
definitional sections of the statute. The definitional sections in Part II of the
statute define the crimes that will come within the jurisdiction of the Court. The
impunity long enjoyed by perpetrators of gender crimes was perpetuated by the
inadequate treatment of these crimes under prior legal instruments. Thus, the
recognition of these crimes under Part II was key to ending this impunity for
gender crimes. The Rome Statute. Articles 7 and 8 in the Rome Statute defining war
crimes and crimes against humanity, respectively, include a subparagraph listing a
broad spectrum of gender-specific crimes. The enumerated crimes are: rape, sexual
slavery, enforced prostitution, forced pregnancy, enforced sterilization and any
other form of sexual violence also constituting a grave breach/serious violation of
the Geneva Conventions (regarding war crimes) 12 or other forms of sexual violence
of comparable gravity (regarding crimes against humanity). 13 This list of sexual
violence crimes is included under the definition of war crimes for both
international and non-international armed conflict. In addition to this list, two
other gender-specific crimes have been enumerated under crimes against humanity.
The first is the crime of persecution against any identifiable group or
collectivity on various grounds, including gender. 14 Secondly, the crime of
"enslavement" is defined as the exercise of any power attaching to the right of
ownership over a person, including in the course of trafficking in persons, in
particular women and children.15 The Significance of the Gender Crimes Provisions.
The provisions on gender crimes under the definitional sections of the Rome Statute
are a historic development under international law. Previous international
humanitarian law treaties failed to properly address sexual and gender violence.
Neither the Hague Conventions respecting the Laws and Customs of War nor the
Nuremberg Charter contained in the Agreement for the Prosecution and Punishment of
Major War Criminals after World War II included any mention of sexual violence. 16
Control Council Law No. 10 on the Punishment of Persons Guilty of War Crimes and
Crimes against Humanity for Germany included rape as a crime against humanity
though not as a war crime. 17 This was significant because the definition of crimes
against humanity requires that the acts in question be either widespread or
systematic. The ways in which sexual violence is committed during war makes it
difficult to prove these conditions. 18 Sexual violence crimes form part of the
culture of war and are often committed on a sporadic basis. War crimes, in
contrast, do not require any proof of systematic planning and therefore have a
lower threshold of proof that is more appropriate for sexual assault cases. P>
Another troubling issue has been the underrecognition of sexual violence crimes as
constituting "grave breaches" of the 1949 Geneva Conventions on the laws of war.
Grave breach crimes are those crimes that are so horrible that their commission is
deemed a concern to the international community as a whole. Sexual violence crimes
are not included in the articles enumerating grave breaches under the 1949 Geneva
Conventions19 (nor under article 3 common to all of the Geneva Conventions, which
lays out minimum protections during the course of armed conflict). Instead, article
27 of the Fourth Geneva Convention states that women shall be protected against
"any attack on their honor, in particular, rape, enforced prostitution, or any form
of sexual assault." 20 This characterization of sexual violence as an attack
against a woman's honor was based on the stereotype that a woman is shamed by being
the victim of rape and denies the great physical and emotional harm suffered as a
result of sexual violence crimes. The 1977 Additional Protocols to the Geneva
Conventions continued this practice of subsuming these crimes under categories
dealing with honor and dignity. The Protocols include rape, (en)forced
prostitution, and any form of indecent assault but connect them to respect for
women or "outrages upon personal dignity, in particular, humiliating and degrading
treatment." 21 This inadequate treatment in prior instruments was duplicated in the
statutes of the two Ad Hoc Tribunals which were set up for the prosecution of
persons responsible for serious violations of international humanitarian law in the
former Yugoslavia and Rwanda (the ICTY and the ICTR, respectively). The statutes of
the two Ad Hoc Tribunals included the crime of rape as a crime against humanity,

but omitted it from the other categories of crimes. Once again, rape was included
neither as a grave breach of the Geneva Conventions, nor as a violation of the laws
or customs of war. Nor were sexual violence crimes other than rape enumerated. 22
The lack of explicit mention of sexual violence crimes as grave breaches failed to
give due recognition to the seriousness of the crimes. This treatment was
discriminatory since it treated with less seriousness violence which occurs mostly
to women in relation to violence which occurs to both men and women. 23 The
prohibition against adverse discrimination in international law therefore
necessitated the separate enumeration of gender crimes under international
humanitarian law. 24 Moreover, the inferior treatment of gender crimes perpetuated
their
underinvestigation and underprosecution. For example, in the tribunals established
after the Second World War to prosecute German and Japanese war criminals, gender
crimes were not pursued with the same degree of diligence as other crimes. 25 Rape
was included in the indictments of some of the individuals tried by the Tokyo
Tribunal but not in any of the indictments of the Nuremberg Tribunal. 26 As another
example, despite the overwhelming evidence of mass rapes during the 1994 genocide
in Rwanda, the ICTR did not include any charges of rape in its indictments until
1997 after concerted pressure from civil society. 27 The fact that sexual violence
crimes had not been explicitly listed as grave breaches under the Geneva
Conventions or included as such under the ICTY and ICTR Statutes was problematic,
though not determinative of their status under international law. International
legal experts and courts increasingly came to recognize that these crimes are in
fact grave breaches because the acts involved also constitute elements in the
definition of other crimes listed as grave breaches. 28 For example, rape may
constitute torture, 29 inhuman treatment, 30 willful killing, 31 willfully causing
great suffering or serious injury to body or health, 32 enslavement, 33 and other
crimes depending on the facts of the case. Following this line of thinking, the
general practice of the Prosecutor at the ICTY and more recently at the ICTR has
been to charge the crime of rape both as rape and as a constituent act of another
crime under the statute. The Women's Caucus was able to draw upon these
developments to push for codification of this treatment in the Rome Statute. The
Rome Statute represents a significant step to overcoming the discriminatory and
inadequate treatment of sexual violence crimes under international law. The Rome
Statute includes gender crimes as both war crimes and as crimes against humanity.
Under the war crimes section, the language makes it clear that the enumerated
crimes are crimes of the gravest nature. The trailer "or any other form of sexual
violence also constituting a grave breach of the Geneva Conventions" 34 which
follows the enumerated sexual violence crimes under article 8(2)(b)(xxii) signals
that the enumerated crimes (rape, sexual slavery, etc.) are themselves grave
breaches of the Geneva Conventions. It is also a signal that acts of sexual
violence can be charged as sexual violence crimes or as the other grave breaches
crimes listed in article 8(2)(a) such as murder, torture, mutilation, enslavement,
etc. This characterization of sexual violence crimes is therefore important to the
ICC's capacity to indict sexual violence crimes in multiple ways. Moreover, the
Rome Statute recognizes a spectrum of gender crimes in addition to rape. It was
important to separately identify other sexual and gender crimes in order to
recognize the distinct characteristics of the different crimes. 35 This serves to
acknowledge the aggravating harm caused to the victim. For this reason, the Women's
Caucus fought to separately identify certain crimes, such as forced pregnancy,
sexual slavery, and gender-based persecution. 36 The Rome Statute includes the
crime of forced pregnancy defined as "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. This
definition shall not in any way be interpreted as affecting national laws relating
to pregnancy." 37 The Rome Statute is the first international treaty specifically
listing the crime of forced pregnancy. Forced pregnancy is not found in the Geneva
Conventions or the statutes of the two Ad Hoc Tribunals. However, the crime has
been recognized as a fundamental humanitarian and human rights violation in the

Vienna Conference's Programme of Action, the Beijing Conference's Platform for


Action and by the UN Commission on Human Rights. 38 The Rome Statute also codified
for the first time the crime of sexual slavery. The Women's Caucus lobbied to have
sexual slavery listed in addition to enslavement and enforced prostitution in order
to recognize the particular elements of sexual slavery. The term sexual slavery is
preferable to enslavement and enforced prostitution because it includes the sexual
aspect of the crime of slavery, while also highlighting the coercive element
involved where women are forced to provide sexual services. At the same time, the
crime of "enforced prostitution" was retained in the Rome Statute to capture those
situations that lack slavery-like conditions. The Rome Statute also established a
new definition for enslavement. The definition of enslavement in the Rome Statute
draws from prior definitions of slavery, 39 with the important addition of
trafficking in persons, in particular women and children. As a result, the crime of
trafficking in persons has been brought within the jurisdiction of the Court.
Finally, the ground of gender was added to the crime of persecution under the
crimes against humanity section. Gender-based persecution, such as the sexual
apartheid regime in Afghanistan, involves the intentional and severe deprivation of
fundamental rights by reason of the victim's gender. 40 Prior formulations of the
crime of persecution named only political, racial or religious grounds, but not
gender. 41 This suggested that gender-based persecution was less important or less
prevalent than persecution on the other enumerated grounds. The inclusion of the
ground of gender in the Rome Statute was an important step to ensuring that genderbased persecution would receive greater attention. The ICC Negotiations. The first
few drafts of the Rome Statute replicated the defects in the traditional treatment
of sexual violence crimes under international law. Specifically, the ICC draft
statutes in 1996 continued to link rape to outrages upon personal dignity under war
crimes, ignored crimes other than rape, and failed to recognize them as grave
breaches of the laws and customs of war. The December 1997 PrepCom was the first
opportunity to correct these problems and in particular to delink sexual violence
crimes from outrages upon personal dignity under war crimes. Because of Women's
Caucus lobbying prior to and during that PrepCom, the draft statute was changed to
create a separate category for rape, sexual slavery, enforced prostitution,
enforced pregnancy, enforced sterilization, and any other form of sexual violence.
42 This separate category was included in the draft unbracketed, meaning that there
was consensus among the delegates to include the separate category. The sole
dissenting voice was the Vatican, which argued that forced pregnancy should be
replaced with "forcible impregnation." 43 The candidates disregarded this
suggestion and the separate category for gender crimes under war crimes was
established. The issue of forced pregnancy was resurrected in Rome and became the
most contentious issue of all the gender provisions. In the aftermath of the rape
and detention of Bosnian women by soldiers to force them to bear Serb babies, the
Women's Caucus believed that it was important to explicitly recognize this crime.
This crime inflicts incomparable harm on the victims by occupying a woman's body
and forcing her to bear her rapist's child. A group of anti-choice organizations
seized this issue to promote their agenda, falsely arguing that including this
crime in the statute would in itself support the right to abortion. This group
found sympathetic ears among a few delegations such as the Vatican and Ireland,
which worried that their policy prohibiting all abortions might come within the
scope of the crime of forced pregnancy. 44 The intention of those who wanted the
crime in the statute was not to criminalize the denial of abortion services (what
is considered an omission under criminal law). Rather, the crime of forced
pregnancy was meant to criminalize the acts of making and keeping a woman pregnant
(a commission under criminal law). For this reason, negotiations were conducted to
arrive at a definition of forced pregnancy clarifying the scope of the crime. While
the Vatican initially conducted negotiations with Women's Caucus members, it
eventually refused to do so, claiming that it would only negotiate with states.
This was a deliberate strategy to undercut efforts to appropriately integrate a
gender perspective by dealing only with government delegation where women are
underrepresented. A few key delegates from Australia, New Zealand, Bosnia-

Herzegovina, Canada, and the US continued negotiations with the Vatican and Ireland
in order to keep forced pregnancy in the statute. 45 The Holy See tried to restrict
the definition to acts committed for the purpose of ethnic cleansing. These
proposals were resisted because it would have excluded many other forms of the
crime. For example, during the Second World War, Jewish women were forcibly made
pregnant so that they and their fetuses could be used for medical experiments. Only
on the second to last day of the conference did the parties finally agree to a
definition which includes "carrying out other grave violations of international
law" as an alternative purpose for the crime's commission. While some negotiating
took place on the other gender crimes, such as enslavement and gender-based
prosecution, none of them was the subject of such intense opposition as forced
pregnancy. It is indeed important to note that there was no serious opposition to
including the other gender crimes, nor to the way they were characterized under the
war crimes and crimes against humanity sections. While the opposition to forced
pregnancy and the term "gender" was a sobering reminder of the unrelenting
hostility of some states to women's rights, it must not cloud our recognition
of the significant support for criminalizing acts of sexual violence among both
governmental and non-governmental participants of the Rome Diplomatic Conference.
##III. INSTITUTING STRUCTURAL MECHANISMS TO ENSURE GENDER BALANCE AND EXPERTISE As
women have increasingly begun to acquire political power, the international
community has acknowledged that their participation in international criminal fora
is fundamental, both because it values gender equity as a goal in itself and
because women are frequently more motivated than their male counterparts to ensure
that gender-based crimes such as rape are investigated and punished. An important
achievement of the Women's Caucus during the negotiations was ensuring that the
composition of the Court would include women in all of its organs and that women
and men with specific expertise in dealing with sexual and gender violence would be
included on the Court's staff at all levels. The Rome Statute. The Rome Statute
requires that "fair representation of female and male judges" be "take[n] into
account" in the selection process, as well as fair representation of females and
males in the selection of staff in all other organs of the Court. 46 It also
mandates that the selection of judges and other staff "take into account the need
to include" persons "with legal expertise on. . . violence against women or
children." 47 Moreover, the Prosecutor is required to "appoint advisers with legal
expertise on specific issues, including... sexual and gender violence." 48 Part 4
also provides for the creation of a Victim and Witness Unit within the ICC's
Registry to "provide, in consultation with the Office of the Prosecutor, protective
measures and security arrangements, counseling and other appropriate assistance for
witnesses, victims... and others who are at risk on account of [their] testimony."
The unit must "include staff with expertise in trauma, including trauma related to
crimes of sexual violence." 49 Recent Experience Confirming the Need for Gender
Balance and Expertise. Although these principles of female representation and
gender expertise had never before been incorporated explicitly in a treaty forming
an international body, the precedents for the adoption of these principles were
clear. Building on the Vienna Conference, 50 the Beijing Conference urged
governments and intergovernmental organizations to "aim for gender balance when
nominating or promoting candidates for judicial and other positions in all relevant
international bodies, such as the [ICTY], the [ICTR] and the International Court of
Justice, as well as other bodies related to peaceful settlement of disputes." 51
The U.N. General Assembly has echoed these words in its call to all member states
to "commit themselves to gender balance" by "creating special mechanisms,"
including "by presenting and promoting more women candidates" within both national
and international bodies and institutions. 52 The ICTY and ICTR are case studies on
why it is so crucial to include women as well as men with appropriate expertise in
international bodies charged with investigating war and conflict situations. The
gradual shift toward taking rape and other sexual crimes seriously and
investigating them zealously can be traced to the participation of women in the
ICTY and ICTR as investigators, researchers, judges, legal advisors, and
prosecutors. 53 In 1993, two of the eleven judges elected by the General Assembly

to serve on the ICTY were women 54 - an unprecedented - if still grossly inadequate


- step. The two women elected were the only women on the list of 23 candidates.
Only after heated political negotiations was a woman from Costa Rica, Elizabeth
Odio-Benito, elected over far less qualified male candidates from Latin America. 55
Indeed, Judge Navi Pillay, the only woman judge on the ICTR, was instrumental in
questioning witnesses in the Akayesu case and evoking testimony of gross sexual
violence, resulting in additional charges being added to the indictment. 56 The
sexual violence charged in the amended indictment eventually led to the defendant's
conviction for genocide due to those acts, the first time an international tribunal
has found that rape and sexual violence can constitute genocide. 57 Judge Pillay
observed recently: "Who interprets the law is at least as important as who makes
the law, if not more so.... I cannot stress how critical I consider it to be that
women are represented and a gender perspective integrated at all levels of the
investigation, prosecution, defense, witness protection and judiciary." 58 The
tribunals are also two of the first examples of the international community
applying other key principles articulated in fora such as the Beijing Conference.
In 1995, Chief Prosecutor Richard Goldstone instituted the position of Legal
Advisor for Gender-Related Crimes (the Gender Legal Advisor). The Gender Legal
Advisor has been instrumental in ensuring the investigation and prosecution of
sexual violence crimes despite the legal difficulties in doing so given their
inadequate enumeration in the ICTY and ICTR Statutes. 59 ICC Negotiations. The
International Law Commission's 1994 draft of the Rome Statute included provisions
requiring judges and staff with expertise in criminal law and international law; 60
however, it did not take account of the U.N.'s consensus that the inclusion of
women is fundamental in forming new international bodies nor did it focus on the
need for gender expertise. In 1996, a proposal of the United States and a joint
proposal from Denmark, Finland, Malawi, New Zealand, Norway, and Sweden, proposed
adding concepts of gender balance to the criteria for the selection of judges. 61
During the March 1998 Preparatory Committee when the provisions related to
composition and administration were debated in detail, the Women's Caucus proposed
language to ensure that judges and other ICC staff included individuals with
expertise in gender analysis. 62 The draft that emerged from the March PrepCom
included bracketed language referring to "gender balance" and "expertise on issues
related to sexual and gender violence." 63 At the Rome Treaty Conference, the
Women's Caucus faced a struggle to ensure the retention of this language. Middle
Eastern delegations, particularly Egypt, Iran, Oman, Syria, and United Arab
Emirates, vehemently opposed the inclusion of gender balance and expertise on
sexual and gender violence. Delegations fighting to include these concepts had to
accept compromise language that replaced "gender balance" with "fair representation
of men and women." 64 The failure to use the term "balance," well-accepted in many
U.N. documents, was a disappointing signal of continued resistance to women's
equality in international institutions. However, the compromise language may have
little practical impact, provided states take seriously the obligation to nominate
and elect women judges, prosecutors and high-level staff. In addition, "expertise
on issues related to sexual and gender violence, violence against children and
other matters" was replaced with "legal expertise on specific issues, including,
but not limited to, violence against women or children." 65 The loss of the
language proposed by the Women's Caucus specifying sexual and gender violence
ironically excludes men, who also are victims of sexual violence during wartime,
but is still revolutionary for requiring the expertise it does. IV. SAFEGUARDING
THE RIGHTS OF VICTIMS OF SEXUAL AND GENDER VIOLENCE In every legal system of the
world, the investigation and prosecution of sexual and gender violence has been
undermined by discriminatory and patriarchal procedural and evidentiary rules as
well as law enforcement attitudes and practices. Underlying these rules and
practices is the prevailing cultural view that while it is correct for society to
formally outlaw rape and other crimes, governmental enforcement of these legal
prohibitions threatens the prevailing male-dominated social order and the "private"
or domestic sphere of relations between men and women. 66 This attitude has
pervaded the international arena as well, 67 and accounts for much of the reason

international crimes of violence against women have gone unsanctioned. The Rome
Statute. The Rome Statute is revolutionary because it codifies a mandate for the
Court to adopt specific investigative, procedural, and evidentiary mechanisms that
are essential to ensure gender justice. The Women's Caucus was able to lobby
successfully for inclusion of these provisions using precedents from the rules and
decisions of the ICTY and ICTR, as well as recent reforms made in some domestic
legal systems. More procedural and evidentiary safeguards related to sexual
violence must still be drafted and finalized when the Court's Rules of Procedure
and Evidence (the "Rules") are negotiated by ICC signatories at upcoming
Preparatory Committee meetings scheduled for 1999. 68 However, the Rome Statute
lays the necessary foundations in various provisions. Article 68 of Part 6 concerns
the protection of victims and witnesses and their participation in proceedings. The
Court is required to take appropriate measures, including conducting proceedings in
camera or allowing the presentation of evidence by electronic means, to protect the
safety, physical and psychological well-being, dignity and privacy of victims and
witnesses, taking into account such factors as age, gender, health, and the nature
of the crime, particularly where the crime involves sexual or gender violence. The
same provision permits the views and concerns of victims to be presented and
considered at appropriate stages of the proceedings. 69 The protections in Article
68 are echoed in other provisions. Part 5 of the statute, concerning investigation
and prosecution, requires the Prosecutor to "take appropriate measures
to ensure the effective investigation and prosecution of crimes," and to "respect
the interests and personal circumstances of victims and witnesses, including age,
gender. . . and health, and take into account the nature of the crimes, in
particular where it involves sexual violence, gender violence or violence against
children." 70 Similarly, in Part 6, concerning the trial, the Trial Chamber is
required to ensure that the trial is conducted showing "due regard for the
protection of victims and witnesses." 71 The same provision also requires the Trial
Chamber prior to and during trial to "[p]rovide for the protection of confidential
information" and "the protection of the accused, witnesses and victims." 72 Article
69 of Part 6, concerning evidence, provides that the Court "may rule on the
relevance or admissibility of evidence, taking into account. . . the probative
value of the evidence and any prejudice that such evidence may cause. . . to a fair
evaluation of the testimony of a witness." 73 Finally, the statute includes a
provision that is fundamental to the Court's ability to ensure concrete justice to
victims. It enables the Court to award reparations to, or in respect of, victims,
including restitution, compensation and rehabilitation, upon request or on its own
motion. 74 Precedents for the Inclusion of a Gender Perspective in the Court's
Workings. Only in the past few decades have some domestic legal systems begun to
enact procedural and evidentiary reforms to ensure that charges of rape, sexual
violence and domestic violence are appropriately treated by law enforcement and
judicial officials in order to encourage victims to come forward and to better
ensure successful prosecution. 75 Following extensive lobbying from women's rights
organizations 76 supported by the two female judges on the ICTY, 77 the judges of
the ICTY and ICTR adopted important rules of procedure and evidence to protect and
counsel victims of sexual crimes and to ensure proper handling of sexual crimes
during trial.78 As noted by Gender Legal Advisor Patricia Viseur Sellers, "the
Rules [of Procedure and Evidence of the ICTY] offer the strongest evidence of the
[ICTY's] specific intent to investigate, prosecute, and adjudicate sexual
assaults." 79 For example, Rule 96, related to evidence in sexual assault cases,
and its counterpart in the ICTR are revolutionary in their approach to evidence of
rape and other sexual crimes. 80 Rule 96 provides that no corroboration of the
victim's testimony is required, that consent shall not be allowed as a defense
except in limited circumstances, and that no prior sexual conduct of the victim may
be introduced. 81 ICC Negotiations. As was the case with every provision related to
sexual and gender violence, there was staunch opposition from some delegations,
particularly Arab states, regarding special measures of protection for sexual and
gender violence. Delegates from these states questioned the need to "single out"
sexual and gender violence for any form of special protection over other crimes.

Using arguments put forth by the Women's Caucus, a large number of other states
countered that it was entirely appropriate to include such protections. They argued
that the long history of inadequate treatment of sexual and gender violence
committed during armed conflict, as well as the initial failures to properly
investigate and prosecute such violence in the former Yugoslavia and Rwanda,
demonstrated how essential special measures are. These provisions were also
embroiled in the larger debate about the use of the term "gender," as discussed in
Section I above. In the end, the vast majority of delegations understood the need
to explicitly include mechanisms to ensure that investigations and trials involving
sexual and gender crimes are appropriately handled and such mechanisms were
included in the Statute. Toward the end of the negotiations and in connection with
Article 68 (protection of victims and witnesses and their participation in the
proceedings), some Arab states staged a culturally revealing exercise in semantics
whose purpose seemed to be to require the Court to hold proceedings in camera or
allow the presentation of evidence by electronic or other means in cases involving
sexual violence or children. Such an extreme exception to the requirement of public
hearings on grounds of "public morality" was rightly rejected by other delegations,
though a presumption favoring such non-public hearings was retained. 82 While a
strong provision favoring closed hearings for victims of sexual violence at their
request is essential to counteract the continuing culturally induced feelings of
humiliation and guilt that often cause such victims to refuse to testify, the
effort of the Middle Eastern states was aimed at keeping the "taboo" issue of
sexual violence "under wraps." Thus, a blanket secrecy requirement would not only
undermine the rights of the accused in some cases, but would perpetuate the
negative stereotypes associated with these crimes, undermining society's ongoing
effort to punish those who merit punishment - the perpetrators - and remove the
veil of shamefulness from the victim. In some cases, a victim may prefer to testify
publicly, exposing the horror of what she suffered as a step forward in her own
healing process. Conclusion The integration of gender concerns into the Rome
Statute is a concrete indication of how far the international women's human rights
movement has come. The inclusion of the specific provisions discussed herein
reflects a mainstreaming of women's rights into the normative structures of
international humanitarian law, a body of law that had previously marginalized
women's rights. In the years leading up to the Rome Treaty Conference, the
political will to address the heinous crimes perpetrated against women during armed
conflict had begun to build among the great majority of nations. The Women's Caucus
was able to exert pressure through its members' presence as NGO observers during
the treaty negotiations as well as through national-level supporters lobbying
government officials at home. Yet the fierce opposition by a few government and NGO
delegations in Rome to the Women's Caucus agenda - in the face of countless recent
and historical examples of women being systematically subjected to rape, forced
pregnancy and other forms of atrocious gender violence during wartime - suggests
that future progress for gender justice should not be taken for granted. No treaty
or court judgment can remedy the suffering of wartime victims of rape, forced
pregnancy, and other sexual violence, nor undo society's gender constructs that so
cruelly multiply their suffering to include shame and guilt. Yet the codification
of a mandate to end impunity for these acts is a significant step in the right
direction. It was high time that such crimes cease to be regarded as "inevitable
by-products" of war and receive the serious attention that they deserve. As just
two of the many supporters of the Women's Caucus, the authors would like to
recognize all of the women and men around the world that contributed to the success
of the Women's Caucus, including the government delegates who supported the goal of
gender justice. We thank Alison-Maria Bartolone for her assistance with this
article. ##Endnotes 1 Human Rights Watch, Human Rights Watch Global Report on
Women's Human Rights (1995): 17-19. #2 The Women's Caucus may be contacted at
iccwomen@igc.org. #3 Vienna Declaration and Programme of Action, U.N. Doc.
A/CONF.157/24 (Vienna, 12 July 1993): Pt. I, 18 & 28, Pt. II, 37. #4 Beijing
Declaration and Platform for Action, UN Doc. A/CONF.177/20 (15 September 1995):
142(b). #5 States that indicated their support during the Opening Plenary for

including provisions in the statute to enable the Court to prosecute sexual (and
where indicated gender) violence crimes included: Australia, Austria, Bangladesh,
Bosnia and Herzegovina, Botswana, Canada, Costa Rica, Cyprus, Denmark, European
Union (gender crimes), Finland, Georgia, Ghana, Israel (gender crimes), Korea
(gender-related violence), Kuwait, Lithuania, Luxembourg, Mexico, New Zealand,
Norway, Philippines, Portugal, Russian Federation, Samoa, Slovenia (gender-related
crimes), South Africa (for SADC), Spain, Sweden (gender-related crimes), Trinidad
and Tobago, Uganda, USA, and Zambia. #6 Other states that took the lead on specific
issues included: Costa Rica, South Africa and Sweden. #7 The states that made
statements opposing the term "gender" included: Qatar, Libya, Egypt, Venezuela,
Guatemala (but flexible), United Arab Emirates, Saudi Arabia, Kuwait, Syria,
Turkey, Sudan, Bahrain, Iran, Yemen, Brunei, and Oman. The delegates who led the
negotiations for this group were from Syria and Qatar. #8 Implementation of the
Outcome of the Fourth World Conference on Women, Report of the Secretary-General,
UN Doc. A/51/322, (3 September 1996): 9. #9 Report of the Fourth World Conference
on Women, UN Doc. A/CONF.177/20, (17 October 1995), "Annex IV: Statement by the
President of the Conference on the Commonly Understood Meaning of the Term
'Gender.'" Paragraphs 2 and 3 state: "Having considered the issue thoroughly, the
contact group noted that: (1) the word 'gender' had been commonly used and
understood in its ordinary, generally accepted usage in numerous other United
Nations forums and conferences; (2) there was no indication that any new meaning or
connotation of the term, different from accepted prior usage, was intended in the
Platform for Action. Accordingly, the contact group reaffirmed that the word
'gender' as used in the Platform for Action was intended to be interpreted and
understood as it was in ordinary, generally accepted usage." #10 The Rome Statute
for the International Criminal Court, UN Doc. A/CONF.183/9, [hereinafter "Rome
Statute"] (17
July 1998): art. 7(3). #11 Ibid., article 21(3). #12 Ibid., art. 8(2)(b)(xxii) for
international armed conflict and art. 8(2)(d)(vi) for non-international armed
conflict. Article 8(2)(b)(xxii) for international armed conflict includes "any form
of sexual violence also constituting a grave breach of the Geneva Conventions."
Article 8(2)(vi) for non-international armed conflict includes "any other form of
sexual violence also constituting a serious violation of article 3 common to the
four Geneva Conventions." #13 Ibid., art. 7(1)(g). #14 Ibid., art. 7(1)(h). #15
Ibid., art. 7(2)(c). #16 "Convention with Respect to the Laws and Customs of War on
Land," The Hague (Hague Convention II) (29 July 1899); "Convention Respecting the
Laws and Customs of War on Land," The Hague (Hague Convention IV) (18 October
1907); "Agreement for the Prosecution and Punishment of Major War Criminals of the
European Axis," London, 8 U.N.T.S. 279, Annex, Charter of the International
Military Tribunal, (Nuremberg Charter) (8 August 1945). #17 Allied Control Council
Law No. 10 Punishment of Persons Guilty of War Crimes, Crimes against Humanity 3
Official Gazette of the Control Council for Germany (Control Council Law No. 10)
(20 December 1945). #18 Theodore Meron, "Rape as a Crime under International
Humanitarian Law," 87 American Journal of International Law 424 (1993): 428. #19
See e.g. Article 147 of the "Convention Relative to the Protection of Civilian
Persons in Time of War," (12 August 1949), [hereinafter Fourth Geneva Convention],
reprinted in United Nations, A Compilation of International Instruments
[hereinafter UN Compilation of International Instruments]. #20 Ibid.: 799. #21
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to
the Protection of Victims of International Armed Conflicts (12 Dec. 1977), UN
Compilation of International Instruments [hereinafter Protocol I]: 862, arts. 75(2)
and 76, and Protocol Additional to the Geneva Conventions of 12 August 1949, and
Relating to the Protection of Victims of Non-International Armed Conflicts (12 June
1977), UN Compilation of International Instruments [hereinafter Protocol II]: 930,
art. 4(2)(e). #22 See Statute of the International Tribunal for the Prosecution of
Persons Responsible for Serious Violations of International Humanitarian Law
Committed in the Territory of the former Yugoslavia since 1991, UN Doc. S/25704
(1993) [hereinafter ICTY Statute]; Statute of the International Criminal Tribunal
for Rwanda, S.C. Res. 955 [hereinafter ICTR Statute] (1994): arts. 2, 3 and 5; see

Meron, supra note 18. #23 For the right to non-discrimination against women, see
"Convention on the Elimination of All Forms of Discrimination against Women," UN
Doc. A/RES/34/180 (3 September 1981); "International Covenant on Civil and
Political Rights," (16 December 1966), 999 U.N.T.S. 171; "Universal Declaration of
Human Rights," U.N. G.A. Res. 217 (10 December 1948). #24 Women's Caucus for Gender
Justice for an ICC, "Recommendations and Commentary for December 1997 PrepCom on
the Establishment of an International Criminal Court," WC.6.1, [hereinafter Women's
Caucus paper], WC.6.1-4. #25 Kelly Dawn Askin, War Crimes against Women:
Prosecution in International War Crimes Tribunals (Martinus Nijhoff Publishers,
1997): 163, 203. #26 These individuals include Admiral Toyoda, Foreign Minister
Hirota, and General Yamashita. See W.H. Parks, "Command Responsibility for War
Crimes," 1 Military Law Review 69 (1993): 69-70, cited in Final Report of the
United Nations Commission of Experts established pursuant to Security Council
Resolution 780, "Annex II: Rape and Sexual Assault: A Legal Study," UN Doc.
S/1994/674/Add.2 (Vol.1) (28 December 1994) [hereinafter Report of UN Commission of
Experts on Rape and Sexual Assault], 20; Prosecutor v. Jean Paul Akayesu, ICTR-964-T, (2 September 1998) [hereinafter Akayesu judgment], 490; and Askin, supra note
25: 200-1; Meron, supra note 18: 425-6; See also Susan Brownmiller, Against our
Will: Men, Women and Rape (1975), cited in Anne Tierney Goldstein, Recognizing
Forced Impregnation as a War Crime under International Law (New York: Center for
Reproductive Law and Policy, 1993): 12. #27 See Amicus Brief Respecting Amendment
of the Indictment and Supplementation of the Evidence to Ensure the Prosecution of
Rape and Other Sexual Violence Within the Competence of the Tribunal, submitted by
the Coalition for Women's Human Rights in Conflict Situations, pursuant to Tribunal
Rule 74, in the case of Prosecutor v. Jean-Paul Akayesu. #28 See Meron, supra note
18; Jennifer Green, Rhonda Copelon, Patrick Cotter and Beth Stephens, "Affecting
the Rules for the Prosecution of Rape and Other Gender-Based Violence Before the
International Criminal Tribunal for the Former Yugoslavia: A Feminist Proposal and
Critique" 5 Hastings Women's Law Journal 171 (1994): 186-7; Anne Tierney Goldstein,
supra note 26: 9; and Rhonda Copelon, "Surfacing Gender: Re-Engraving Crimes
against Women in Humanitarian Law," 5 Hastings Women's Law Journal 243 (1994). #29
Akayesu judgment, supra note 26: 597; Prosecutor v. Delalic et al., Celibici, Case
No. IT-96-21, (16 November 1998): 480-96 [hereinafter Celibici judgment]; See also
Women's Caucus paper, supra note 24: WC.5.6-2-4. #30 In the case of Cyprus v.
Turkey, the European Commission found that rape constituted "inhuman treatment"
under article 3 of the Convention and held that Turkey was responsible for the mass
rape of Cypriot women in 1974. Cyprus v. Turkey 4 European Human Rights Reports 482
(1976): 537; See UN Commission of Experts on Rape and Sexual Assault, supra note
26: 29. #31 Women's Caucus paper, supra note 24: WC.5.6-1. #32 Report of UN
Commission of Experts on Rape and Sexual Assault, supra note 26: 15; Women's Caucus
paper, supra note 24: WC.5.6-14 #33 For example, in the indictment for Dragoljub
Kunarac, the facts alleged that women were held in military headquarters and forced
to provide sexual services and domestic services. The indictment, which was upheld
by the Court upon a defence motion, charged the defendant with the crime of
enslavement for these acts. Prosecutor v. Dragoljub Kunarac, Gagoviv and Others,
Decision on Defence Preliminary Motion on the Form of the Amended Indictment, IT96-23 (21 October 1998). #34 Rome Statute, arts. 8(2)(b)(xxii) and (e)(vi). #35
Women's Caucus paper, supra note 24: WC.5.2. #36 Ibid. #37 Rome Statute, art. 7(2)
(f). #38 "Vienna Declaration and Programme of Action," supra note 3: 18 and 38;
"Beijing Declaration and Platform for Action," supra note 4: 114, 132, and 135;
Commission on Human Rights Resolution 1998/52, "The Elimination of Violence against
Women," (April 17, 1998), 4; Res. 1998/76 "Rights of the Child," (April 22, 1998),
13(a); Res. 1997/44, "The Elimination of Violence against Women" (11 April 1997):
4; Res. 1997/78, "Rights of the Child," (1997): 13(a); Res. 1996/49, "The
Elimination of Violence against Women" (19 April 1996): 5; Res. 1995/85 "The
Elimination of Violence against Women" (8 March 1995): 5. #39 Article 1 of the
Slavery Convention, (25 September 1926), United Nations, A Compilation of
International Instruments, Vol. 1 (First Part), (1993): 201; Articles 1 and 6(2) of
the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and

Institutions and Practices Similar to Slavery, ECOSOC Res. 608, (30 April 1956);
Articles 2 and 25 of ILO Convention concerning Forced Labour. See also Article 4 of
the "Universal Declaration of Human Rights," supra note 23. #40 Rome Statute, arts.
7(1)(h) and 2(h). #41 ICTY Statute, art. 5; ICTR Statute, art. 3; Control Council
Law No. 10 Punishment of Persons Guilty of War Crimes, Crimes Against Peace and
Humanity (20 December 1945) 3 Official Gazette of the Control Council for Germany
50; "Charter of the International Military Tribunal" in Agreement for the
Prosecution and Punishment of the Major War Criminals of the European Axis, London,
8 August 1945, 82 UNTS 279. #42 Decisions taken by the Preparatory Committee at its
December 1997 Session, 20C(B)(p bis): 268, M. Cherif Bassiouni, ed., International
Criminal Court: Compilation of United Nations Documents and Draft ICC Statute
before the Diplomatic Conference (1998). #43 This proposal was formally tabled by
the Vatican at the March-April 1998 PrepCom session. See U.N. Doc. 249/1998/DP.13
(1 April 1998). #44 Countries that made statements opposing or expressing concern
regarding the inclusion of the crime of forced pregnancy included: Bahrain,
Paraguay, United Arab Emirates, Saudi Arabia, Holy See, Kuwait, Egypt, Libya,
Ecuador, Venezuela, Nicaragua, Malta, Russia, Oman, Ireland, Poland, Philippines,
Colombia, Costa Rica, Iran, Iraq, and San Marino. #45 The countries that expressed
support for recognizing forced pregnancy included: Canada, US, Australia,
Netherlands, Azerbaijan, Slovenia, Croatia, Mexico, Sudan, Estonia, Burundi,
Rwanda, Turkey, Nigeria, Austria, India, and Bosnia-Herzegovina. #46 Rome Statute,
arts. 36(8)(a)(iii) & 44 (2). #47 Ibid., arts. 36(8)(b) & 44(2). #48 Ibid., art.
42(9). #49 Ibid., art. 43(6). See also art. 68 (providing that the Victims and
Witnesses Unit may advise the Prosecutor and the Court on appropriate protective
measures, security arrangements, counseling and assistance). #50 "Vienna
Declaration and Programme of Action," supra note 3: 37. #51 "Beijing Declaration
and Platform for Action," supra note 4: 142 (b), (c). #52 G.A. Res. 51/69, adopted
12 Dec. 1996. In 1997, the General Assembly reaffirmed the goal of 50/50 gender
distribution by the year 2000 in all categories of posts within the United Nations
system. G.A. Res. 52/96, adopted 12 Dec. 1997. Pursuant to that resolution, the
Secretary-General issued a report on progress to date in achieving gender equality
in the Secretariat and reaffirming his commitment to achieve
gender balance. See also "Improvement of the Status of Women in the Secretariat,"
Report of the Secretary-General, A/53/376 (14 Sept. 1998). #53 Askin, supra note
25: 302. #54 Ibid. #55 See Green, et. al., "Affecting the Rules for the Prosecution
of Rape," supra note 28: 171, 176-77 (1994). #56 Women's Caucus for Gender Justice
in the International Criminal Court, Recommendations and Commentary for the March
1998 PrepCom: Part II (Procedures) 4 & 16 (1998). As a result of a different
investigatory approach and concerted attention to sexual violence crimes, the ICTR
Prosecutor presented testimony, previously claimed to be impossible, of five
victims and witnesses. Ibid: 16. #57 See Akayesu judgment, supra note 26: Sec. 7.8.
#58 United Nations, Division for the Advancement of Women and Centre for Refugee
Studies, York University, Canada, Gender-Based Persecution: Report of the Expert
Group Meeting, EGM/GBP/1997/Report, (Toronto, Canada, 9-12 November 1997): 33. #59
See Askin, supra note 25; see also Patricia Viseur Sellers and Kaoru Ozuizumi,
"Prosecuting International Crimes: An Inside View: International Prosecution of
Sexual Assaults," 7 Transnt'l L. & Contp. Probs (1997): 45, 56-68. #60 See Report
of the International Law Commission on its Forty-Sixth Session, Draft Statute for
an International Criminal Court (2 May-22 July 1994), G.A., 49th Sess., Supp. No.
10, A/49/10, 1994, art. 6, reprinted in International Criminal Court Compilation,
supra note 42. #61 Report of the Preparatory Committee on the Establishment of an
International Criminal Court: Volume II, (Compilation of Proposals), G.A. 51st
Sess., Supp. No. 22, A/51/22, (1996, reprinted in International Criminal Court
Compilation, supra note 42. #62 Women's Caucus for Gender Justice in the ICC,
Gender Justice and the ICC 34 (Prepared for the UN Diplomatic Conference on the
Establishment of an ICC, June 1998). #63 Report of the Preparatory Committee on the
Establishment of an International Criminal Court, Draft Statute and Draft Final
Act, A/Conf.183/2/Add.1 (1998): art. 37(8)(e), reprinted in International Criminal
Court Compilation, supra note 42. #64 In addition to the delegations named above,

Kenya, Russia, and Nigeria also opposed the concept. The compromise language of
"fair representation" was proposed by Slovakia, which was eventually accepted
during informal consultations. #65 Rome Statute, art. 36(8)(b). With respect to
gender expertise, Kenya, Guatemala, Kuwait, Indonesia, and Iraq were opposed to its
inclusion. #66 See, generally, Elizabeth M. Schneider, The Violence of Privacy, 23
Connecticut Law Review(1991): 971, 973; Hilary Charlesworth, Christine Chinkin and
Shelley Wright, Feminist Approaches to International Law, 85 American Journal of
International Law(1991): 613, 625-628; Amy E. Ray, The Shame of It: Gender-based
Terrorism in the Former Yugoslavia and the Failure of International Human Rights
Law to Comprehend the Injuries, 46 American University Law Review (1997): 793, 830835 (relating the effects of this dichotomy to the sexual crimes committed in the
Yugoslav conflict). #67 See Celina Romany, State Responsibility Goes Private: A
Feminist Critique of the Public/Private Distinction in International Human Rights
Law in Human Rights of Women (Rebecca Cook, ed., 1994): 85; Andrew Byrnes, "Women,
Feminism and Women's International Human Rights Law - Methodological Myopia,
Fundamental Flaws or Meaningful Marginalisation?" 12 Austl. Y.B. Int'l L. (1992):
205, 225-231; Evelyn Mary Aswad, "Torture by Means of Rape" 84 Georgetown Law
Journal (1996): 1913, 1919-20. #68 During the treaty negotiations, many states
expressed the view that the inclusion of, for example, a provision specifically
dealing with excluding gender discriminatory evidence should be left for the Rules.
See Report of the Preparatory Committee on the Establishment of an International
Criminal Court, Draft Statute and Draft Final Act, supra note 62, Part 6, fn. 15.
In general, Article 69(4) of the Rome Statute establishes that the Court must
evaluate the probative value of the evidence and any prejudice that such evidence
may cause to a fair trial or to fair evaluation of a witness. In addition, Rome
Statute article 21(3) states that the applicable law employed by the Court cannot
be applied or interpreted in a gender discriminatory way. #69 Rome Statute, art.
68(1),(2)&(3). #70 Ibid., art. 54(1)(b). #71 Ibid., art. 64(2). #72 Ibid., art.
64(6)(c)&(e). #73 Ibid., art. 69(4). #74 Ibid., art. 75. #75 These reforms have
included one or more of the following: (i) permitting non-disclosure of the
victim's identity in certain circumstances; (ii) allowing portions of a trial to be
conducted in camera; (iii) abolishing the evidentiary requirement of multiple
corroborating witnesses or "cautionary rules" regarding the adequacy of the women's
uncorroborated testimony, (iv) narrowing the scope of the defense of "consent" by
the victim, including by disallowing the introduction of evidence of her past
sexual history to infer consent, and (v) doing away with investigative techniques
and presumptions disfavoring intrusion in "private" matters or requiring physical
evidence of violence or evidence of a "struggle." #76 Green, et al., "Affecting the
Rules for the Prosecution of Rape," supra note 28. #77 Askin, supra note 25: 303.
#78 Provisions with particular relevance to sexual violence prosecutions are ICTY
Rule 34 (concerning the Victims and Witnesses Unit, special attention to victims
and witnesses and States' need for a gender-balanced staff); Rule 75 (permitting
non-disclosure for an indictment); and Rule 96 (related to evidence on sexual
assault cases). See Sellers, supra note 58: 50-53. #79 Sellers, supra note 58: 50.
#80 Askin, supra note 25: 303-305. Askin discusses how the absence of Rule 96 could
result in defense c