Document - Stop violence against women: How to use international criminal law to campaign for gender-sensitive law reform

Stop violence against women: How to use international criminal law to campaign for gender-sensitive law reform

Stop violence against women:
How to use international criminal law to campaign for gender-sensitive law reform

"The gender provisions [of the Rome Statute of the International Criminal Court] could help strengthen the capacity to address violence against women at the national level via the inclusion of additional crimes of sexual and gender violence, progressive definitions of existing crimes, and more gender-sensitive procedures for the trial of these crimes … It is thus imperative that women’s groups focusing on issues of law reform and violence against women get engaged ….."

- Pam Spees, 2003(1)

INTRODUCTION

(a) About this Guide

Over the past decade the international community has taken unprecedented steps to address crimes of violence against women in international law. Despite the small number of individuals who have been tried and convicted of these crimes in international courts and tribunals, important standards have been set that can be used as a model for national systems. New and progressive definitions of crimes of gender-based violence have been adopted and procedural rules have been modified to remove some of the discriminatory assumptions and practices that often make prosecutions traumatic for victims and reduce the chances of conviction.(2)

International criminal courts such as the International Criminal Tribunals for the former Yugoslavia and Rwanda have contributed significantly to defining crimes of violence against women, in particular crimes of sexual violence, and effective procedures for victims. These advances are reflected and expanded upon in the Rome Statute of the International Criminal Court (Rome Statute), which was adopted in July 1998. International courts only have the capacity to try a small number of individuals. In order to end impunity it is therefore essential to ensure that national authorities effectively investigate and prosecute crimes of violence against women before national courts. Unfortunately, recent history shows that national authorities often fail to investigate and prosecute crimes of violence against women, particularly when crimes are committed in times of conflict. When they do act, the applicable laws do not define crimes adequately and procedures fail to respect the dignity of the victims.

This guide has been created as a tool for Amnesty International and other non-governmental organizations, in particular women’s groups, to campaign for national legal reform on the criminalization of violence against women that meets the highest standards of international practice. It aims to provide greater detail in one specific area - criminal law - than other campaigning documents produced so far as part of Amnesty International’s global Stop Violence Against Women campaign.

For more general advice on campaigning on the wide range of issues relevant to ending violence against women, please see: Making Rights a Reality: Building Your Campaign, AI Index: ACT 77/051/2004, June 2004.(3) This guide identifies the following steps that are relevant to national investigations and prosecutions for crimes of gender-based violence:

Ø Including gender-based crimes under international law in your country’s national law
Ø Ensuring an end to impunity for perpetrators of violence against women by allowing prosecution in national courts regardless of where the crime was committed (universal jurisdiction)
Ø Adopting gender sensitive criminal procedures
Ø Improving the treatment of victims and witnesses in the criminal justice system
Ø Ensuring reparations, including compensation, for victims of gender-based violence
Ø Ensuring gender balance and expertise amongst staff in the criminal justice system.

No country currently applies all the relevant rules, definitions and standards laid out in this guide. Therefore, Amnesty International believes that lawyers’, women’s and other civil society groups in all countries will find this guide useful in planning and implementing campaigns for the legislative changes that will be relevant in your own criminal justice system.

(b) Background to the development of gender-sensitive standards in international courts

International criminal law includes:
* Crimes under international law, including customary and conventional law, such as genocide, crimes against humanity, war crimes, torture, enforced disappearances and extrajudicial executions
* Conduct where treaties require states to extradite suspects or to submit the cases to their own prosecutors for the purposes of prosecution, such as counterfeiting, hijacking of aircraft and "terrorist" offences.

International criminal law on violence against women has developed over the past decade - thanks to the sustained lobbying efforts of women’s organizations from around the world - in a much more gender-sensitive manner than ever before.

Rape has been prohibited under the law of armed conflict for centuries. However, until recently, gender-specific abuses committed against women in times of conflict were either seen as a natural consequence of war (and therefore not as criminal acts), or - if recognized as crimes - were generally considered crimes against a woman’s "honour" or "dignity" rather than crimes of gender-based violence. The four Geneva Conventions of 1949, some of the most important treaties governing armed conflicts, do not expressly include rape or other forms of sexual assault as grave breaches. Rape and certain other forms of sexual violence committed during an international armed conflict can be prosecuted as grave breaches of the Geneva Conventions, such as torture, inhuman treatment and wilfully causing great suffering or serious injury to body or health.

However, the failure to list crimes of sexual violence as grave breaches in their own right has unfortunately sent the signal that states are not required to prosecute them as some of the most serious war crimes. Similarly, the Nuremberg Tribunal to try Nazi war criminals did not include rape as a crime in its statute, and the Tokyo Tribunal set up to prosecute Japanese war criminals tried a small number of rapes merely as violations of "family honour", rather than as crimes against the rape survivors.(4) There are, however, a small number of counter-examples to the general rule that gender-based violence has not been criminalized in its own right under the laws of armed conflict. The 1945 Allied Control Council Law No. 10 expressly listed rape as a crime against humanity and in 1996 the International Law Commission confirmed in its Draft Code of Crimes against the Peace and Security of Mankind that rape, enforced prostitution and other forms of sexual abuse were crimes against humanity.

The establishment of the International Criminal Tribunal for the former Yugoslavia in 1993 and the International Criminal Tribunal for Rwanda in 1994 brought about a number of significant developments with regard to addressing serious crimes of violence against women through international criminal law. The Statutes for the two international criminal tribunals incorporated gender-based violence in a relatively limited way: they included rape as a crime against humanity only and not as a war crime. They also did not expressly list any other form of gender-based violence. However, both tribunals made progress in expanding the definitions of gender-based crimes and developing procedures for the prosecution of gender-based violence through jurisprudence. The Prosecutors for both Tribunals have prosecuted rape and other forms of sexual violence as elements of genocide, torture and other inhumane acts, but the prosecution strategy and practice with regard to crimes of sexual violence in the ICTR has been criticized.(5)

The experience of the tribunals proved very important in the preparation by the International Law Commission of its 1994 draft statute for a permanent international criminal court and its 1996 Draft Code of Crimes against the Peace and Security of Mankind, which included a number of crimes against humanity and war crimes of sexual violence in addition to the crime against humanity of rape. Both instruments in turn influenced the drafting of the Rome Statute of the permanent International Criminal Court (ICC).(6) After years of negotiation and debate, in July 1998, the international community adopted the Rome Statute, with 120 states voting in favour. The Rome Statute provides that the Court can investigate and prosecute individuals accused of genocide, crimes against humanity and war crimes, when national courts are unable or unwilling to do so. Following the 60th ratification of the Rome Statute, the Court’s jurisdiction began on 1 July 2002, and the Court is now functioning in The Hague.(7)

After intense lobbying by non-governmental organizations working for human rights of women, including Amnesty International, the Rome Statute addresses many gender concerns, including definitions of crimes that de-link gender-based violence from concepts of "honour" and "dignity", provisions that seek to protect victims and witnesses, and recognition of the need for a fair representation of female and male judges, including judges with expertise on violence against women.(8) After the adoption of the Rome Statute, the Assembly of States Parties also adopted two supplementary instruments - the Rules of Procedure and Evidence, which establish in greater detail how the Court will function, and the Elements of Crimes, a non-binding instrument which is designed to assist the Court in its interpretation and application of the Rome Statute.(9) These two instruments will be referred to extensively in this guide, as many of the standards and procedures relevant to gender-based violence are included in these instruments. In many aspects, the Rome Statute and its Rules of Procedure and Evidence have set the bench mark on the prosecution of crimes of violence against women. The definition of crimes and many of the procedural aspects have influenced the new internationalized courts, including the Special Court for Sierra Leone and the Special Panels for East Timor.

(c) States responsibilities in relation to international criminal law

All states have a legal duty under international human rights law to take action to prevent, investigate and punish violence against women.(10) This obligation is sometimes referred to as an obligation to exercise "due diligence". States must implement their obligation under treaties and customary international law to respect, protect and fulfill human rights in both law and practice. States must fulfill and promote rights so that they are respected by state agents and non-state actors including by maintaining an effective justice system.

This obligation can therefore be used to campaign for law reform in many areas, including reform of the criminal justice system. All of the standards and rules outlined in this guide can be used as examples of how states can meet the highest standards of international practice, and therefore as examples of how states can fulfill their obligation under international law to protect women from violence.

States parties to the Rome Statute have recognized in the Preamble that they have the duty to ensure the effective prosecution of acts of violence against women that amount to genocide, crimes against humanity and war crimes by exercising their jurisdiction over these crimes. Giving effect to this obligation means that states must enact legislation defining these crimes as crimes under national law. The process of implementation of the Rome Statute at the national level currently being conducted by many states represents the biggest opportunity for reform of national criminal law and criminal procedure in recent history. Civil society groups can use the process of national implementation of the Rome Statute to campaign for states to address weaknesses in their existing laws relating to violence against women. In order for states to avoid a finding by the International Criminal Court that they are ’unable or unwilling’ to prosecute a particular crime, the national justice system must have the legislation available to prosecute crimes, in accordance with the procedural safeguards and fair trial standards laid down in the Rome Statute. Civil society groups can also use other provisions concerning support and protection of victims, participation of victims at all stages of the proceedings and appointment of legal experts on crimes of sexual violence as models for reform of the national criminal justice systems.

Although a state party to the Rome Statute has no binding legal obligation to extend the Rome Statute definitions of crimes of sexual violence to domestic crimes, women’s advocates can use these definitions to advocate for a change to the definition of domestic crimes as well.

Ø To see whether your country has already enacted legislation implementing its obligations under the Rome Statute, go to: http://web.amnesty.org/pages/icc-implementation-eng. If legislation already exists, this can be used to push for further reforms to domestic crimes as well as international crimes. For example, if your country has already criminalized rape, sexual slavery, forced pregnancy, enforced sterilization and other forms of sexual violence in situations of a "widespread or systematic attack", you can argue that these horrific forms of sexual violence should also be criminalized and defined in a consistent way when they are not part of such an attack. Further guidelines on the scope and definitions of these crimes are included in the next section.

All states also have an obligation to enact and implement universal jurisdiction legislation over crimes of violence against women amounting to genocide, crimes against humanity, war crimes, torture, extra-judicial executions and disappearances. There are strong moral and logical grounds for states to extend universal jurisdiction over other crimes of violence against women not amounting to these crimes. See Section 2 of this guide for further information on universal jurisdiction.

This guide addresses the gender aspects of the Rome Statute only. For guidance on campaigning for implementation of other elements of the Rome Statute please see: Amnesty International, International Criminal Court: Checklist for Effective Implementation, AI Index: IOR 40/11/00, 1 August 2000.(11)

PART I. BUILDING A NATIONAL CAMPAIGN FOR LEGAL REFORM

This section outlines some suggested steps and useful information when campaigning for gender-sensitive criminal law reform at the national level. Of course, each country and each criminal justice system is different, so only some aspects of these suggestions will be useful for each country. More detail can be found in: Making Rights a Reality: Building your campaign, AI Index: ACT 77/051/2004, June 2004(12) and the Amnesty International Campaigning Manual, AI Index: ACT 10/002/2001, 1 December 2001.(13)

Step 1: Identify partners

The first step in campaigning for law reform is to identify partners that you can work with in your efforts to develop the most suitable strategy. Some possibilities include:

Ø Relevant Amnesty International groups or networks such as women’s, lawyers, media.

Ø National or local women’s organizations: most of these groups will have experience of lobbying government on various law reform issues.

Ø Amnesty International lawyers groups: members of lawyers groups will be particularly helpful in completing the evaluation included below.

Ø Bar associations or law societies

Ø Academics: legal or feminist academics may be particularly interested in assisting in law reform efforts.

Ø National or local NGO members of the Coalition for the International Criminal Court (CICC): for more information on how to contact these groups see: http://www.iccnow.org.

Ø Members of the Women’s Initiatives for Gender Justice

The Women’s Initiatives for Gender Justice (previously the Women’s Caucus for Gender Justice) is an international women’s human rights organization based in The Hague. The Women’s Caucus was instrumental in negotiating the gender-sensitive aspects of the Rome Statute, and its successor now continues to monitor the activities of the Court to ensure gender justice. It has member organizations around the world. For more information, and to see if there are any member organizations from your country or region, see: http://www.iccwomen.org.

Step 2: Evaluate your national justice system

In order to campaign for criminal law reform, you need to evaluate your national legal system to see where gaps exist and where improvements should be made. The evaluation form below describes the most common problems with criminal law in most countries. Remember to check both your country’s criminal law or criminal code, as well as any legislation that may include international crimes. For example, many states will already have war crimes legislation, but it may not include all of the gender-based crimes outlined below. Some states may also include international crimes such as genocide or torture in separate legislation. States may also have legislation that seeks to implement their obligations under the Rome Statute of the International Criminal Court, but this may not reflect all the crimes and standards set out in the Rome Statute.

Ø If your country has legislation that deals with war crimes, you may be able to find this legislation on the International Committee of the Red Cross (ICRC) legislation database: http://www.icrc.org/ihl-nat(14)

Ø If your country has legislation that seeks to implement its obligations under the Rome Statute, you may be able to find this legislation on the AI international justice web pages: : http://web.amnesty.org/pages/icc-implementation-eng(15)

Women’s organizations, human rights organizations, national criminal lawyers, legal academics, bar associations and law societies may also be able to help you in locating this information. You should be able to get a copy of the relevant legislation from your national justice department, department of constitutional affairs or equivalent government department. It may be available online directly from the department’s website or through a library.

Using the information you have gathered, you will be able to compile a thorough evaluation of your national justice system. This could be done in conjunction with the partners you have identified.

The following evaluation form can be used to identify gaps in your national law that need to be addressed.

Crimes:	Part II, section
Does your country include the crime of rape in national law, in a way that is consistent with the ICC definition? For example: Ø Is the definition is gender-neutral? Ø Does the definition include penetration by any body part or object? Ø Does the definition include forced oral and anal penetration? Ø Does the definition focus on the acts of the perpetrator? Ø Is there no need to prove overwhelming physical force?	1 (a)
Does your country include the crime of sexual slavery in national law, in a way that is consistent with the ICC definition?	1 (b)
Does your country include the crime of enslavement in national law, in a way that is consistent with the ICC definition? Importantly: Ø Does the national definition of enslavement include the crime of trafficking? Is the definition of trafficking consistent with the Trafficking Protocol definition?	1 (c)
Does your country include the crime of forced pregnancy in national law, in a way that is consistent with the ICC definition?	1 (d)
Does your country include the crime of enforced sterilization in national law, in a way that is consistent with the ICC definition?	1 (e)
Does your country include crimes of other forms of sexual violence in national law, in a way that is consistent with the ICC definitions?	1 (f)
Does your country include the crime of gender-based persecution in national law, in a way that is consistent with international law? Does your country recognize gender-based persecution as grounds for claiming refugee status?	1 (g)

For all of the above crimes:	Part II, section
Is each of these crimes criminalized as: Ø A crime against humanity? Ø A war crime? Ø An ordinary serious crime? (i.e. are national definitions of crimes such as rape consistent with international definitions?)	2
Can the authorities exercise universal jurisdiction over these crimes: Ø When the act is a crime against humanity? Ø When the act is a war crime? Ø When the act is genocide? Ø When the act is torture? Ø When the act is slavery? Ø When the act is an ordinary serious crime?	2

Criminal Procedure	Part II, section
Are there rules that restrict the admission of evidence of consent in trials of crimes of sexual violence? Specifically: Ø Is it impermissible to imply consent due to silence or a lack of resistance by the victim? Ø Can consent not be inferred from words or conduct of the victim where there was force, threat of force or a coercive environment? Ø Is the admission of such evidence considered in camera (closed proceedings)?	3 (b)
Is evidence of prior or subsequent sexual conduct of the victim inadmissible in trials for crimes of sexual violence in a manner consistent with the Rome Statute?	3 (c)
Is corroboration of the victim’s testimony explicitly not required in crimes of sexual violence?	3 (d)
Is it possible for victims of sexual violence to give their evidence in closed proceedings or via video or audio-link?	3 (e)
Is it possible for a victim of sexual violence to be accompanied by another person while giving evidence in court?	3 (f)

Other issues (may be dealt with through regulations, rules and practices rather than legislation):	Part II, section
Do victims have any opportunity to participate in court proceedings? (for example, through legal representation at each stage of the proceedings and in statements)	4 (a)
Are national provisions for protection, counseling and support for victims sufficient?	4 (b)
Are victims of the crimes outlined above entitled to all forms of reparations recognized under international law and standards?	5
Are there effective measures to ensure that there gender balance and expertise amongst staff of the criminal justice system? Particularly, Ø Do national law and court rules require the appointing authorities to seek to achieve a fair balance between men and women amongst prosecutors, judges and other staff of the criminal justice system? Ø Do national law and court rules require that court staff have expertise on issues surrounding gender-based violence? Ø Do national law and court rules require the adoption and implementation of effective training for staff of the criminal justice system?	6

Step 3: Map the external and internal context and set objectives

The next step is to analyse the context in which your campaign will be operating. What are the key factors that will affect the way you choose your objectives? You should consider how legal, political and economic trends in your country are having an impact on the perception of women, human rights and violence. These factors will influence what campaign objectives you think will most improve the situation in your country; and which opinion formers and decision-makers you target. You can assess the context of the campaign and the most realistic objectives with the partners you have identified.

You will also need to evaluate your internal context in order to assess what change you can realistically hope to make, depending on your resources: human, material, technical, knowledge, time, etc. A useful tool is to carry out a SWOT analysis: Strengths, Weaknesses, Opportunities and Threats. This tool combines the external and internal analysis and will provide you with a clearer picture of your overall context, the most suitable strategy and what objectives are the most realistic and achievable.

Objectives should be SMART: specific, measurable, achievable, relevant and time bound. This will help clarify what you are trying to achieve, help you plan your activities so that they bring the result you want and make evaluation easier. There are a number of tools you can use to develop your campaign strategy and key objectives. These include the "strategic campaigning cycle" and the "problem and solution tree". More details of these tools can be found in: Making Rights a Reality: Building your campaign, (AI Index: ACT 77/051/2004), 3 June 2004(16) and the Amnesty International Campaigning Manual, (AI Index: ACT 10/002/2001, 1 December 2001).(17)

Depending on the situation in your country, objectives could be broad or narrow. Examples of objectives you could adopt include:
· Your country changes the national definition of rape to be gender-neutral, include penetration by objects and to take into account non-physical coercive circumstances.
· Your country includes all gender-based crimes outlined below as crimes against humanity and war crimes in national law.
· Your country adopts legislation that allows it to prosecute anyone found on its territory who has committed a crime of gender-based violence (referred to as "universal jurisdiction").
· Your country modifies court procedures to allow victims and witnesses to give evidence via closed circuit television (CCTV) and to have a support person attend court with them.
· Your country adopts laws and procedures to provide reparations to victims of gender-based crimes.
· Your country adopts procedures to ensure more equal gender representation amongst judges and court staff.
· There is significant media coverage of the need for your country to change particular laws in order to be more gender sensitive.
· A certain number of members of parliament or government support the changes to the law that you are proposing.

Step 4: Identify target audiences and approaches

Once you have set objectives that are realistic and achievable for your country you need to identify target audiences:

· Who has the power to make the changes your objectives call for?
· Can you reach them directly? If not, who can?
· What is their current understanding of the legal situation and of violence against women?
· What barriers or misconceptions do you need to address?

The direct target audience may be a government minister or other official, or members of parliament. Those with influence over the direct target may include public servants, bar associations, judges, lawyers, media, religious or community leaders or particular groups within civil society.

In order to determine the most important target audiences, you could develop an influence map, or channels of influence diagram. Examples of these tools are included on page 13 of

Making Rights a Reality: Building your campaign

(AI Index: ACT 77/051/2004, 3 June 2004).(18)

Step 5: Develop a plan of activities

Your campaign should follow a logical pathway from one campaign activity to the next until you reach your objectives. You will need to think about which activities should take place first to increase the chances of success of the later activities. The pathway you adopt will show a natural flow from raising awareness to increasing pressure on decision-makers from different directions.

The tone of campaign materials should be positive about the possibility for change, respectful of those who have experienced violence and focus on infrastructure that allows these acts to occur with impunity rather than shaming perpetrators.

Some possible campaign activities that could be useful in achieving your objectives include:

Ø Publicize the results of your evaluation: inform key actors about the results of your evaluation and the aspects of national laws that need to be changed in order to bring them in line with international standards. Produce a summary of your evaluation, including recommendations for change. Develop some key messages that highlight the most important aspects of change that you are campaigning for. Engage the media in the issue, possibly by using examples of women who have experienced injustice in the criminal justice system due to flaws in the law.

Ø Identify opportunities for law reform: find out whether there are any changes to the law already being contemplated by the government or the legislature. For example, countries that have ratified the Rome Statute may be in the process of drafting legislation to implement their obligations under the Statute. This is a perfect opportunity to lobby for broad implementation of international criminal law into the national system. This process may be led by the Ministry of Foreign Affairs rather than the Ministry of Justice. Find out if there will be an opportunity to lobby formally for changes to the law, for example the draft law may be considered by a Parliamentary Committee that accepts submissions from NGOs.

Ø Plan seminars: in order to inform interested members of the public and key actors of your campaign and the need for change – engage both women and men in the issue. Find national cases or lawyers to speak about examples of why the current system is flawed. Issue a report of the seminar, meeting or conference to inform other key actors of the issues that were discussed.

Step 6: Continuing action and feedback

Campaigning for law reform is usually a medium to long-term objective in any campaign. Getting the issue on the political agenda, drafting new laws, undertaking consultations, debate, reviews and parliamentary consideration all take time. Make sure that your campaign plan includes a long-term commitment to this work and that you have the capacity to maintain continuing action on the issue.

It is important that you monitor and evaluate your work at key milestones in the campaign. How successful has the strategy been so far? Do you need to rethink and reset your objectives? Have the internal or external contexts changed? And if so, how does that affect your original strategy and plans? Depending on the answers to these questions, the strategy will need to be revisited and changed appropriately.

For Amnesty International groups it is also important to report back to the International Secretariat what has been happening with your campaign. The International Secretariat will be sharing lessons with other parts of the Amnesty International movement and evaluating the campaign at the global level.

PART II: GENDER-SENSITIVE ELEMENTS OF INTERNATIONAL CRIMINAL LAW

1. Gender-based crimes that all nations should criminalize

Not all acts of violence against women are currently considered crimes under international criminal law – for example domestic violence and sexual harassment are not dealt with as crimes in international criminal law. Therefore, there is a significant limit on the extent that the international system can be used as a model for domestic legislation. However, the crimes that are included in international criminal law are often defined in a way that is more progressive than the definitions of crimes contained in most national systems. Therefore, these crimes and definitions can be used to advocate for more comprehensive definitions of existing crimes at the national level, as well as the addition of new crimes that may not currently be included in national legislation. International criminal law includes a number of gender-based crimes that, in certain circumstances, can amount to genocide, crimes against humanity, war crimes or torture. The crimes include rape, sexual slavery, forced pregnancy, enforced sterilization, other forms of sexual violence of a comparable gravity and gender based persecution. These crimes should be included in national legislation as ordinary serious crimes, but also, where indicated below, as crimes under international law. (19) Gender-sensitive rules of procedure and evidence are also crucial to the successful prosecution of the crimes listed below - these rules are described in Section 3.

The crimes under international law referred to in this section are:

Ø Genocide means a specified act(20) committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. Although 130 states have ratified the 1948 Convention for the Prevention and Punishment of the Crime of Genocide and 98 states have ratified the Rome Statute (which incorporates the Genocide Convention definition) as of April 2005, most states parties of these treaties have not defined genocide as a crime under national law. Many of those states that have done so have not defined genocide consistently with the Genocide Convention. However, in some instances the national definitions of genocide are broader in scope, either by expanding the number of prohibited acts or by increasing the number of protected groups.

Ø A crime against humanity is one of a number of prohibited acts including rape and other crimes of sexual violence, as described below, committed as part of a widespread or systematic attack directed against a civilian population.(21) Most states have not defined crimes against humanity as crimes under national law and most which have done so have not defined them consistently with the Rome Statute.

Ø A war crime is a one of a number of violations of the law of armed conflict committed during an international or non-international armed conflict. Many states have already included some war crimes committed during international armed conflict as crimes under their national legislation, but most of them have not defined war crimes committed during non-international armed conflict as crimes or included all of the crimes of sexual violence listed below in the definition of war crimes.(22)

Ø Torture can amount to a crime against humanity or a war crime. When it does not also constitute one of these crimes under international law, it involves the intentional infliction of severe suffering, for a prohibited purpose by a state agent or with the tacit acceptance by the state. (23) Although 139 states have ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, most of these states have not defined torture as a crime under national law or have not used definitions consistently with the Convention against Torture.

In certain circumstances the crimes of sexual violence described below can amount to genocide. They may also constitute torture, including torture as a crime against humanity and as a war crime. At the international level, the definitions of these crimes are included in a number of sources, including the Rome Statute, the Elements of Crimes and international court jurisprudence. Only some of these crimes are defined in the Rome Statute.

In the discussion of individual crimes of sexual violence below, the text in the boxes is taken from the Elements of Crimes of the International Criminal Court. Some elements of each crime of sexual violence form part of crimes against humanity, war crimes committed during an international armed conflict and war crimes committed during a non-international armed conflict. An exception to this is the crime of persecution. For convenience, the text in the boxes omits the common elements needed to establish that the conduct was a crime against humanity or a war crime committed during an international or a non-international armed conflict. (24) The text in the box also excludes the mental element necessary to prove that a person committed the crime. The mental element of these crimes, unless otherwise provided, is spelled out in Article 30 of the Rome Statute.(25) National definitions of crimes should ensure that the applicable mental element of crimes of sexual violence is consistent with the Rome Statute.(26) No one should escape criminal responsibility in a national court for a crime of sexual violence because of a weaker definition of the mental element for conduct that would lead to a conviction in the International Criminal Court.

In addition to the crimes outlined below, the Rome Statute also includes the crime of forced prostitution. This crime is not discussed below, as all conduct covered by this crime could be more accurately characterised as sexual slavery or another form of sexual violence. The term ‘forced prostitution’ can be used to imply that women received some benefit from the act and therefore is not seen as an appropriate title by many women’s groups.(27)

(a) Rape

Goal: Your country should include the crime of rape in national law, in a way that is consistent with the points outlined below. Rape should be defined as genocide, a crime against humanity, a war crime, torture and a serious crime of sexual violence.

ELEMENTS OF THE CRIME AGAINST HUMANITY AND WAR CRIME OF RAPE

(1) 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.

(2) 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.**

* The concept of "invasion" is intended to be broad enough to be gender-neutral.

** It is understood that a person may be incapable of giving genuine consent if affected by natural, induced or age-related incapacity. This footnote also applies to the corresponding elements of article 7 (1) g-3 [enforced prostitution], 5 [enforced sterilization] and 6 [sexual violence] [of the Rome Statute.]

Rape is one of the most pervasive forms of violence against women, and has been committed repeatedly in times of conflict throughout history. Rape and other forms of sexual violence have been used as a deliberate tactic attempting to strip women of their dignity and destroy their sense of self, to terrorize populations, to humiliate communities and to destroy ethnic groups.(28) Defined in the Rome Statute as a crime against humanity and a war crime, rape has also been found by the international criminal tribunals in certain circumstances to amount to genocide(29) and torture.(30) These definitions and understandings depart from earlier characterization in international law of rape as a crime against a woman’s "honour" or "dignity", rather than as a fundamental violation of her human right to bodily integrity and sexual autonomy.

The definition of rape as a crime against humanity and as a war crime in the Elements of Crimes above marks significant progress in the conception of the crime in international law. It improves on national definitions of rape in the following ways:

Ø The definition is gender-neutral. Rape can be committed or otherwise facilitated by a female or a male perpetrator, and the victim can be either female or male.
Ø The definition includes acts of penetration by objects or other body parts, not just the penis (as in many national definitions of rape).(31) It also includes forced oral and anal penetration.(32)
Ø The definition focuses on the actions of the perpetrator rather than the victim. This is achieved by focusing on the force, threat of force or coercive circumstances used by the perpetrator, rather than the consent or lack of consent of the victim.(33) For a further discussion of the role of consent in the definition of rape, see ‘Evidence of consent’ - Section 3(b) below.
Ø The definition covers non-physical coercive circumstances. Therefore, it is not necessary to show that the perpetrator employed overwhelming physical force to establish that rape occurred (as in some national jurisdictions).(34)

The first element of the definition of rape in the Elements of Crimes, which is largely based on the ICTY Trial Chamber definition in the 1999 Furundžija judgment, is not perfect.(35) It has been criticized as an overly mechanical description of body parts that narrows the similar element in the Akayesu definition ("A physical invasion of a sexual nature, committed on a person under circumstances which are coercive").

Since the adoption of the Elements of Crimes, there have been a number of decisions by the ICTR and ICTY, including the recent judgment of the ICTY Trial Chamber in Prosecutor v. Kunarać, affirmed by the Appeals Chamber relating to the ways in which coercion can be applied to the victim in crimes of sexual violence. (36) In this judgment, the Trial Chamber states that it is not restricting in any way the scope of Akayesu, but addressing a potentially restrictive interpretation of another ICTY Trial Chamber judgment in Furundžija. The Trial Chamber in Kunarać saw rape as a violation of sexual autonomy and noted that such autonomy was "violated wherever the person subjected to the act has not freely agreed to it or is otherwise not a voluntary participant".(37) It was concerned that factors other than force, threat of force against the victim or a third person or coercion that would make the act non-voluntary or non-consensual. For example, the act could be not voluntary when the victim was particularly vulnerable or deceived.(38) The Appeals Chamber also provides examples of coercive circumstances used by perpetrators, including detention in prisons, military headquarters, detention centres and apartments maintained as soldiers’ residences, where there would be a presumption that the act was not voluntary or consensual.(39) It will be important for national legislation and the jurisprudence of national courts to ensure that the circumstances mentioned by the chamber in Kunarać will negate any apparent consent, unless freely given.(40) However, it will also be essential for national legislation and courts interpreting it not to make consent an element of the crime to be proved.

The Trial Chamber in the Akayesu judgment concluded that rape in certain circumstances could constitute genocide.(41)

Most national definitions of rape fall far short of these standards. Therefore, the Rome Statute and the elements of this crime in the Elements of Crimes, subject to the above caveats, can be used as an example of international best practice and as a way to call for changes in national definitions to reflect international best practice.

(b) Sexual slavery

Goal: Your country should include sexual slavery as a crime against humanity and a war crime in national law, building upon the elements of this crime in the Elements of Crimes, but incorporating all contemporary forms of enslavement where the perpetrator caused a person or persons to engage in one or more acts of a sexual nature. Your country should make it clear that there is no necessary commercial element in the definition of the crime. In addition, sexual slavery not amounting to a crime against humanity or a war crime should be defined as a serious crime of sexual violence under national law.

ELEMENTS OF THE CRIME AGAINST HUMANITY AND WAR CRIME OF SEXUAL SLAVERY

(1) The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.*

(2) The perpetrator caused such person or persons to engage in one or more acts of a sexual nature.

* It is understood that such a deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to a servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children.

The Rome Statute is the first international treaty expressly to include the crime of sexual slavery. Women’s advocates lobbied for the inclusion of this crime independently from the separate counts of crimes of enslavement and enforced prostitution, in order to emphasize the sexual aspect of the crime of slavery, and to emphasize "the coercive element involved where women are forced to provide sexual services".(42) This crime is gender-based as it tends to exploit women’s traditional roles as domestic service providers.(43) It includes situations where women and girls are forced into "marriage", domestic servitude or other forced labour, including forced sexual activity.(44)

Abuses amounting to sexual slavery have been committed in many armed conflicts, including in the former Yugoslavia,(45) Rwanda, Liberia,(46) the Democratic Republic of the Congo, Sierra Leone, Uganda and throughout Asia during World War II. The new Special Court for Sierra Leone has charged six people with acts of sexual slavery committed during the internal armed conflict.(47)

Commentators have pointed out that the first element of the crime outlined above may lead to an overly restrictive interpretation of slavery.(48) The illustrative list used to demonstrate the types of activity that can amount to slavery are all largely commercial in nature, potentially limiting the scope of the crime unnecessarily. Therefore, it is important that states make it clear that there is no necessary commercial element in the crime of slavery.

Sexual slavery can also involve individual acts outside the context of war. For example, the Elements of Crimes definition makes clear (in the accompanying footnote) that sexual slavery as a crime against humanity and a war crime includes the actions of people traffickers. The crime of trafficking relates to all labour sectors and not just the sex industry (see the next section for more general description of the crime of trafficking). However, it is clear that where women are recruited, transported, transferred, sold or purchased in order to work in the sex industry in conditions of servitude, this amounts to a crime of sexual slavery.(49) States must recognize these acts as a crime committed by the trafficker, and not prosecute the victim for immigration or other offences.

The Japanese army was responsible for thousands of acts of sexual slavery during World War II, where "comfort women" were kidnapped and forced to serve as sexual slaves. They were raped, tortured, subjected to other forms of sexual violence and many were killed in the last stages of the war. It is estimated that at least 200,000 women were victims of this brutal crime, however no-one has ever been held criminally responsible. As more and more women came forward in the 1990s to speak of what had happened to them, several Asian women’s organisations decided to establish a "people’s tribunal" for the comfort women, to allow them to tell their stories and to establish the horrific scale of this crime against humanity. The Women’s International War Crimes Tribunal was not able to impose legal accountability, however it was successful in allowing over 75 women to share their stories, in finding Emperor Hirihito responsible for these crimes and in creating an historical record of the abuse and pain of the "comfort women".(50)

(c) Enslavement, including trafficking

Goal: Your country should include enslavement as a crime against humanity and a war crime in national law, consistent with the Elements of Crimes. Enslavement should also be defined as a serious crime in other circumstances and should expressly include the crime of trafficking within the definition, in a way that is consistent with the UN Trafficking Protocol and the Council of Europe Convention on action against trafficking in human beings.

ELEMENTS OF THE CRIME AGAINST HUMANITY AND WAR CRIME OF ENSLAVEMENT

Article 7(2)c) of the Rome Statute:
"Enslavement" means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.

Elements:
The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.*

* It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to a servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children

In addition to the crime of sexual slavery, the Rome Statute includes the more general crime of enslavement to cover situations of slavery that lack a sexual element. For example, women are often held captive during conflict and forced to serve as cooks, porters or minefield sweepers.(51) Slavery is one of the earliest human rights violations to be recognized as a crime under international law, and the definition of enslavement in the Rome Statute draws on previous definitions of slavery adopted in treaties.(52) The definition is unique, however, because it includes trafficking, particularly of women and girls, in the definition.(53)

Over the past decade, trafficking has increasingly been recognized as a serious form of abuse, and states are beginning to take steps at the inter-governmental level to combat trafficking as serious crimes under national law, but rarely – when trafficking amounts to a crime against humanity or a war crime – as a crime under international law.(54) The Rome Statute’s recognition of trafficking, particularly of women and children, as a crime against humanity and as a war crime should contribute to ensuring that states criminalize the actions of traffickers rather than the victims of trafficking.(55) States often respond to trafficking victims by charging them with violations of immigration or other laws and deporting them to their country of origin, where they may be at risk of further violations from their traffickers.(56) States should adopt a rights-based approach to victims of trafficking, and take seriously their obligation to prosecute those responsible for trafficking. In addition to including the crime of trafficking in national law, states should also be encouraged to adopt the definition of trafficking contained in the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol).(57) The UNHCHR Principles and Guidelines on Human Rights and Trafficking(58) and the UNICEF trafficking guidelines(59) should also serve as a guide to law reform in this area, in a way that adopts a rights-based approach and respects the rights of victims of trafficking.

The same concerns noted above with the first element of sexual enslavement apply to the element above of the crime against humanity and the war crime of enslavement. States must ensure that non-commercial acts can also constitute enslavement.

During the Bosnian conflict in 1992, many women were held captive in rape camps and used as sexual slaves. These women were sometimes kept prisoner in houses or apartments and repeatedly raped and degraded. In 2002, Dragoljub Kunarać and Radomar Kovać were convicted by the International Tribunal for the Former Yugoslavia of various crimes against humanity, including enslavement. Both men had held women and girls in their apartments for months on end for use as sexual slaves. The conviction was the first time in the history of international criminal prosecutions that individuals were found guilty of enslavement based on crimes of sexual violence. The definition of enslavement applied by the Tribunal was later largely adopted in the Rome Statute.(60)

(d) Forced pregnancy

Goal: Your country should include the crime against humanity and the war crime of forced pregnancy as crimes under national law. In doing so, states should also define any act of confining unlawfully a person who has been forcibly made pregnant as a serious crime under national law.

ELEMENTS OF THE CRIME AGAINST HUMANITY AND THE WAR CRIME OF FORCED PREGNANCY

7(2)(f) "Forced pregnancy" 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. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy.

The Rome Statute is the first international treaty expressly to include forced pregnancy as a crime. Women have been subjected to forced pregnancy in many armed conflicts, sometimes as a tool to implement deportation or forcible transfer of population. In Bosnia-Herzegovina the UN Commission of Experts reported that in some camps "captors state that they are trying to impregnate the women, pregnant women are treated better than their non-pregnant counterparts, and pregnant women are detained until it is too late in their pregnancy to obtain an abortion."(61)

During the negotiations of the Rome Statute, some states that prohibit abortion in their national laws raised concerns that the definition of the crime of forced pregnancy could be used to argue that they were committing a crime of forced pregnancy by not providing access to abortion services. To allay this concern, a reference to "intent to affect the ethnic composition" of the population was incorporated in the definition.

The definition of forced pregnancy adopted in the Elements of Crimes is thus limited in that it provides that the perpetrator must have intended to affect the ethnic composition of the population or to carry out another grave violation of international law. Amnesty International believes that any act of confining unlawfully a person who has been forcibly made pregnant as a result of rape should be considered a crime, and therefore states should not include this limitation in national law.

Forcing women to bear children of a different ethnicity was a widespread phenomenon in the Yugoslav conflict. Women were held in rape camps and repeatedly raped until they became pregnant. They were then held until it was too late to obtain an abortion. As one woman held in such a camp remembers: "A gynaecologist would come to the hall, to one of the classrooms ... I think they were checking to see if we were pregnant ... The Serbs said to us, 'Why aren't you pregnant? See how nicely we treat women who are pregnant?' ... They wanted us to have children to stigmatize us forever."(62)

(e) Enforced sterilization

Goal: Your country should include enforced sterilization as a crime against humanity and a war crime under national law, consistent with the Elements of Crimes. In addition, enforced sterilization in other circumstances should be defined as a serious crime of sexual violence under national law.

ELEMENTS OF THE CRIME AGAINST HUMANITY AND WAR CRIME OF ENFORCED STERILIZATION

1. The perpetrator deprived one or more persons of biological reproductive capacity.*

2. The conduct was neither justified by the medical or hospital treatment of the person or persons concerned nor carried out with their genuine consent.**

* The deprivation is not intended to include birth-control measures which have a non-permanent effect in practice.

** It is understood that ‘genuine consent’ does not include consent obtained through deception.

Enforced sterilization was recognized as a war crime during the Nuremberg trials, where perpetrators were tried for acts committed in the context of medical experiments.(63) Enforced sterilization was widespread in Nazi Germany, and was often carried out on those suffering from schizophrenia, epilepsy and "congenital feeblemindedness".(64) The Nazi forced sterilization programs were modeled on legislation and practice in other countries. In the past century, enforced sterilization for eugenic or population control reasons was authorized and carried out in countries including Canada, China, Denmark, Finland, France, Iceland, India, Norway, Sweden, Switzerland, the United Kingdom and the United States. Support for sterilization programs was based on the view that they would "improve the human population". For example, a recent Swedish government report stated that between the 1930s and 1976, over 32,000 people, mostly women, were involuntarily sterilized, based on judgments of racial inferiority, alcoholism, epilepsy or mental retardation.(65)

Given the permanent and devastating consequences of forced sterilization for the victim, it is essential that all states include forced sterilization as a crime against humanity and a war crime under their national law.

Forcible sterilization was a widespread technique of the Nazis during World War II, in order to prevent Jews from reproducing and as a form of medical experimentation. An employee of the Auschwitz infirmary gave the following testimony to the Nuremberg Tribunal:
"As to the experiments, I have seen ... the queue of young Jewesses from Salonika who stood waiting in front of the X-ray room for sterilization ... They sterilized women either by injections or by operation or with rays. I saw and knew several women who had been sterilized. There was a very high mortality rate among those operated on ... They said that they were trying to find the best method for sterilizing so as to replace the native population in the occupied countries by Germans after one generation, once they had made use of the inhabitants as slaves."(66)

(f) Other forms of sexual violence

Goal: Your country should include forms of sexual violence other than rape in the definition of the crimes against humanity and war crimes under national law, consistent with the Elements of Crimes. In addition, sexual violence not amounting to a crime against humanity or a war crime should be defined as a crime under national law, without including the requirement for "comparable gravity".

ELEMENTS OF THE CRIME AGAINST HUMANITY OF SEXUAL VIOLENCE

ELEMENTS OF THE WAR CRIME DURING INTERNATIONAL ARMED CONFLICT OF SEXUAL VIOLENCE

1. The perpetrator committed an act of a sexual nature against one or more persons or caused such person or persons to engage in an act of a sexual nature 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 persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent.

2. Such conduct was of a gravity comparable to that of a grave breach of the Geneva Conventions.

ELEMENTS OF THE WAR CRIME DURING NON-INTERNATIONAL ARMED CONFLICT OF SEXUAL VIOLENCE

1. The perpetrator committed an act of a sexual nature against one or more persons or caused such person or persons to engage in an act of a sexual nature 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 persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent.

2. Such conduct was of a gravity comparable to that of a serious violation of article 3 common to the four Geneva Conventions.

The inclusion of other forms of sexual violence as crimes against humanity and war crimes in the Rome Statute is very important in ensuring that forms of sexual violence that do not amount to rape, sexual enslavement, forced prostitution, forced pregnancy or forced sterilization do not fall outside its scope. For example, the Yugoslav and Rwanda Tribunals have convicted perpetrators of acts of sexual violence such as forced nudity(67) and sexual mutilation,(68) but have done so by relying on the crime of "inhumane treatment" which lacks the gender-sensitivity of the crime of "sexual violence". The elements of the crimes of forced nudity and sexual mutilation cover two situations of more general relevance to the commission of crimes of sexual violence: where the perpetrator commits sexual acts against the victim and where the perpetrator caused the victim by force, threat of force or coercion to perform sexual acts.

When states have defined sexual violence as crimes against humanity and war crimes under national law, they have sometimes criminalized only rape and excluded other forms of sexual violence.(69) Rape is an enumerated crime under the Rome Statute in its own right. It is important that all states include forms of sexual violence not amounting to one of the enumerated crimes above as crimes against humanity and war crimes under their national law, to cover cases of sexual violence that do not amount to one of these crimes.

Element two of the crime against humanity of other forms of sexual violence states that this conduct must be of "comparable gravity" to other crimes included in the Rome Statute as a crime against humanity. National law should incorporate a broader second element of the crime of sexual violence to make clear that the comparison can be with any of the crimes in the Rome Statute, not just with the most serious of these crimes. Similarly, the second element of other forms of sexual violence as a war crime should be of comparable gravity to any war crime, not just with grave breaches or serious violations of common Article 3.(70) The reasons for the inclusion of this second element do not apply to crimes of sexual violence not amounting to crimes against humanity or war crimes and it should not be a part of the definition of such crimes under national law.

(g) Persecution based on gender

Ø Goal: Your country should include gender-based persecution as a crime against humanity in national law. There should be no requirement that the persecution occur in connection with a crime against humanity or a war crime within the jurisdiction of the ICC (fourth element). Gender-based persecution in other circumstances should also be defined under national law.

ELEMENTS OF THE CRIME AGAINST HUMANITY OF PERSECUTION

1. The perpetrator severely deprived, contrary to international law,* one or more persons of fundamental rights.

2. The perpetrator targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such.

3. Such targeting was based on political, racial, national, ethnic, cultural, religious, gender as defined in Article 7, paragraph 3, of the Statute,** or other grounds that are universally recognized as impermissible under international law.

4. The conduct was committed in connection with any act referred to in article 7, paragraph 1, of the Statute [crimes against humanity] or any crime within the jurisdiction of the Court [genocide or war crimes].

* This requirement is without prejudice to paragraph 6 of the General Introduction to the Elements of Crimes [Paragraph 6 states: ‘The requirement of "unlawfulness" found in the Statute or in other parts of international law, in particular international humanitarian law, is generally not specified in the elements of crimes.’]

** Article 7(3): ‘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.’

Persecution has been a crime under international law at least since 1945.(71) However the Rome Statute is the first international instrument to include gender as a ground of persecution. The previous lack of express recognition of the crime of gender-based persecution reflects "the tendency of international diplomats to view the persecution of women through the lens of race or ethnicity or religion, rather than on the basis of gender".(72) The Rome Statute’s recognition is therefore important where women are persecuted because they are women. The definition of persecution adopted above makes clear that not every denial of human rights of women constitutes persecution on the basis of gender. However persecution does not need to result in physical harm. Both the Rwanda and Yugoslav tribunals have recognized acts involving mental, social and economic harm as acts of persecution.(73)

Due to the concern of a few states at the Rome Conference that the crime of persecution could be considered too vague,(74) the fourth element above was included. This element requires a connection with another serious crime within the jurisdiction of the ICC. However, this link is not a requirement of international criminal law. Persecution as a crime against humanity exists independently of any other crime, and this has been recognized by Control Council Law No. 10 for the prosecution of persons accused of war crimes and crimes against humanity after the Second World War,(75) the Statutes of the Yugoslav and Rwandan tribunals(76) and in cases decided at the Yugoslav Tribunal.(77) Therefore, states should not include the requirement outlined above in the fourth element in their national definitions of the crime of persecution, as it unnecessarily limits the scope of the crime.

It is very important that states recognise gender-based persecution in national law, both as a crime and as a ground for granting refugee status, while making sure to distinguish between the two concepts. Persecution in relation to a claim of refugee status is a much wider concept, as the emphasis is more on the state of mind of the person being persecuted rather than the intent of the perpetrator. The concept of persecution in relation to a refugee claim refers to serious human rights violations or to a pattern of discrimination or less favourable treatment which could, on cumulative grounds, amount to persecution and warrant international protection.(78) However, the treatment of gender-based persecution with regard to refugee status claims will have a bearing on the interpretation of the scope of the crime of persecution based on gender. For example, the UNHCR Gender Guidelines, issued in 2002, provide a substantial analysis of the various elements of the refugee definition and will be a useful source in interpreting Article 7 (1) (h) of the Rome Statute.(79)

Recent examples of gender-based persecution include the legislation and practices of the Taliban dominated government in Afghanistan, which included prohibition of women working, attending school or leaving their homes if not accompanied by a male relative. Women were also denied access to medical treatment and forced to be veiled from head to foot in public. The legislation was enforced in an arbitrary manner, such as summary beatings for women found in public violating one of these rules. Brown and Grenfell argue that the treatment of women under the Taliban regime meets all of the necessary elements of gender-based persecution in the Rome Statute, and that all states are, therefore, now obliged to investigate and prosecute those found in their territory who were responsible for such acts.(80)

2. No safe haven for perpetrators of violence against women - using universal jurisdiction

Ø Goal: Your country should enact and implement legislation authorizing their courts to exercise universal jurisdiction over all crimes of gender-based violence, including those that amount to genocide, crimes against humanity, war crimes, torture or slavery.

As the Preamble of the Rome Statute makes clear, every state has the duty to exercise its jurisdiction over persons suspected of crimes under international law and to ensure effective prosecution of such crimes by taking measures at the national level to enhance international cooperation.(81) Articles 1 and 17 of the Rome Statute confirm that states have the primary responsibility to investigate and prosecute these crimes. Only when they are unable or unwilling to do so will the International Criminal Court investigate and prosecute these crimes. In order to fulfill this responsibility, each state has to exercise the jurisdiction over genocide, crimes against humanity and war crimes it has under international law, not just its often more limited jurisdiction under national law.

The most common form of criminal jurisdiction exercised by states is in relation to crimes committed on their own territory (territorial jurisdiction). However, international law has gradually recognized other forms of jurisdiction, such as jurisdiction over crimes committed outside the state by the state’s nationals (active personality jurisdiction), crimes committed against the state’s security interests (protective principle jurisdiction) and crimes committed against a state’s own nationals (passive personality jurisdiction).

In addition, for more than two centuries, states have provided in national legislation that their courts can exercise universal jurisdiction over ordinary crimes recognized as criminal in most legal systems. International law has also increasingly recognized the responsibility of states to exercise jurisdiction on behalf of the entire international community - when a crime is serious enough to threaten the entire international framework of law - regardless of where the crime was committed or the nationality of the accused. International law now permits - and in some cases requires - states to exercise jurisdiction over persons suspected of such grave crimes under international law, including genocide, crimes against humanity, war crimes, torture, extrajudicial executions and "disappearances". Most states, however, have very limited provisions in national law in relation to universal jurisdiction. A worldwide survey conducted by Amnesty International in 2001 found that over 125 countries have universal jurisdiction for some crimes, but that most of these laws are incomplete or flawed.(82)

The use of universal jurisdiction is an important way for states to hold perpetrators accountable for some of the worst crimes of violence against women. In some cases states have binding treaty obligations to enforce such jurisdiction, and in other cases customary international law imposes the obligation. Each category of crime and states’ responsibilities in relation to gender-based violence are outlined below. All governments should be urged to enact universal jurisdiction legislation over all these crimes, including acts of violence against women.

For more information on how states should ensure the most effective universal jurisdiction legislation, please see: Universal Jurisdiction: 14 Principles on the effective exercise of universal jurisdiction, AI Index: IOR 53/001/1999, 1 May 1999.(83)

(a) Gender-based crimes as genocide, crimes against humanity, war crimes, torture and slavery

Genocide:
It was recognized by states that the crime of genocide is subject to universal jurisdiction, even before the adoption of the Genocide Convention in 1948. Although the Genocide Convention does not expressly mention universal jurisdiction, the records of the negotiating history confirm that the drafters did not intend to preclude states parties from exercising universal jurisdiction over genocide. There is also overwhelming evidence, including the enactment by many states of legislation permitting the exercise of universal jurisdiction over genocide and the practice of national courts, that any state may exercise universal jurisdiction over this crime.(84)

It is clear that in certain circumstances some crimes of sexual violence against women can constitute genocide. In particular rape and sexual violence have been recognized as an act of genocide by the Rwanda Tribunal in the Akayesu case. In this decision, the Trial Chamber concluded that in certain circumstances rape and sexual violence "constitute genocide in the same way as any other act as long as they were committed with the specific intent to destroy, in whole or in part, a particular group, targeted as such" (see discussion above of the specific circumstances in Part II.1.a).(85) The crimes of sexual violence committed against women were "an integral part of the process of destruction, specifically targeting Tutsi women and specifically contributing to their destruction and to the destruction of the Tutsi group as a whole … - destruction of the spirit, of the will to live, and of life itself".(86)

Crimes against humanity:
Crimes against humanity are also subject to universal jurisdiction. Every state has the right to exercise universal jurisdiction over these crimes, and it is increasingly recognized that states may also have a duty under international law either to do so when a suspect is found within their jurisdiction or to extradite a suspect to another country willing and able to exercise jurisdiction.(87) Two international treaties governing crimes against humanity explicitly permit states to exercise universal jurisdiction over particular crimes against humanity - the Apartheid Convention(88) and the Convention against Torture.(89) The Yugoslav Tribunal has also recognized the right of all states to exercise universal jurisdiction over any crime against humanity in the Tadić case.(90)

The definitions of crimes against humanity contained in the Rome Statute of the ICC are widely considered to be authoritative. In accordance with these definitions, acts of rape, sexual slavery, forced prostitution, forced sterilization, forced pregnancy, other forms of sexual violence of a comparable gravity, gender-based persecution and trafficking are all crimes against humanity when committed as part of a "widespread or systematic" attack on a civilian population.

War crimes:
The four Geneva Conventions for the Protection of War Victims of 1949, which have been ratified by almost every state,(91) as well as Protocol I, require each state party to search for persons suspected of grave breaches of these Conventions, to bring them to justice in their own courts, to extradite them to states which have made out a prima facie case against them, or to surrender them to an international criminal court. This is a binding legal obligation on all states which have ratified the Geneva Conventions and Protocol I. In addition, states may exercise universal jurisdiction over violations of common Article 3 of the Geneva Conventions and of Protocol II, as well as over other war crimes committed during non-international armed conflict.(92)

There is no express reference to crimes of sexual violence in the list of grave breaches found in the four Geneva Conventions and Protocol I. However, the torture of women during an international armed conflict is clearly a grave breach of these treaties, and this undoubtedly includes rape and many other forms of sexual abuse, such as sexual mutilation. Rape, enforced prostitution and other forms of indecent assault are expressly prohibited in the Geneva Conventions under certain circumstances. However, these crimes are not listed as grave breaches.(93)

Torture:
Individual acts of torture that do not constitute a crime against humanity or a war crime are still crimes under international law. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), which 140 countries had ratified as of April 2005,(94) requires states parties to extradite those suspected of torture found in their territories or to submit their cases to the authorities for the purpose of prosecution.(95) This is a legally binding obligation on states parties to the Convention.

Rape and other crimes of sexual violence can constitute acts of torture or ill-treatment, particularly when committed by agents of the state, such as soldiers, police and prison officers, or by others with their consent or acquiescence. Rape has been prosecuted by the Yugoslav and Rwanda Tribunals as an act of torture, either as a war crime or as a crime against humanity, and judgments have recognized that rape can constitute all of these crimes, including torture.(96) In the Delalić case, the Yugoslav Tribunal found that rape of women prisoners, including during interrogation, inflicts severe psychological and physical suffering, and that "in situations of armed conflict, when it occurs with the consent or acquiescence of an official, rape ’inherently’ meets the purpose element of torture - that it involves punishment, coercion, discrimination or intimidation."(97) This means that all states parties to the Convention against Torture have an obligation to enact laws and regulations that make clear that rape perpetrated or condoned by a state official is an act of torture, and give domestic courts the power to exercise jurisdiction over anyone suspected of such a crime, regardless of nationality.

Slavery
Slavery is a crime under international law even in circumstances when it does not amount to a crime against humanity or a war crime. Slavery and slavery-like practices were among the first crimes to be recognized as part of customary international law. This customary prohibition against slavery arose partly because of the trans-national nature of the slave trade in the late nineteenth century. Therefore, international treaties prohibiting slavery permit states to exercise universal jurisdiction over the crime.(98) There is no need for a national authority to show a link with any type of armed conflict, or to show that the conduct occurred in the context of a "widespread or systematic attack" on a civilian population.

(b) Other crimes of gender-based violence

As noted above, states can also exercise universal jurisdiction over "ordinary" crimes recognized as criminal according to general principles of law, such as individual acts of rape, sexual abuse and violence against women.

In the light of the above, all states should, therefore, enact legislation that requires their criminal justice authorities to investigate and, if there is sufficient admissible evidence, prosecute suspects in their territory or subject to their jurisdiction, unless the person is extradited to another state or surrendered to an international criminal court. The legislation should also permit those authorities when the suspect is abroad to investigate anyone suspected of these crimes, regardless of the perpetrator’s nationality or place where the crime occurred, and, if there is sufficient admissible evidence, to prosecute, provided that the person is present in the state where the court is located a sufficient time before trial to prepare a defence.

3. Gender-sensitive criminal procedure for crimes of gender-based violence

In addition to enacting laws to incorporate crimes of violence against women, it is equally important that states review and amend their procedural and evidentiary rules to ensure that victims are treated with respect and dignity during the judicial process, while ensuring the right of the accused to a fair trial. In many national justice systems rules of procedure and evidence in cases of sexual violence have the effect that the victim is put on trial rather than the accused. Structural rules reflect a deep suspicion of the victim.(99) As Barbara Bedont and Katherine Hall Martinez note:

[I]n every legal system in the world, the investigation and prosecution of sexual and gender violence has been undermined by discriminatory and patriarchal procedural and evidentiary rules …. Underlying these rules … 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.(100)

The Rome Statute tackles some of the most common problems with procedural and evidentiary rules that have traditionally made trials traumatic experiences for victims of gender-based violence. The Rules of Procedure and Evidence of the ICC build on the advances made in recent years in a few national justice systems, as well as at the Yugoslav and Rwandan Tribunals. They also reflect input from numerous non-governmental organizations working for the rights of women, including Amnesty International.(101) Therefore, the rules outlined below represent international best practice that all states should follow when prosecuting crimes of sexual violence.

(a) Fair trial in cases involving crimes of sexual violence

The Rome Statute strikes the appropriate balance in ensuring that trials involving crimes of sexual violence fully respect the right to fair trial of the accused and the rights of victims and witnesses and should therefore be a model for national criminal proceedings in such cases. Article 64 (2) of the Rome Statute requires the Trial Chamber to "ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses". In addition, Article 68 contains several provisions requiring that essential steps to protect and support victims and witnesses must not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.(102)

(b) Evidence of consent

Goal: Your country should include provisions in its rules of procedure and evidence modeled on the ICC’s Rules of Evidence and Procedure that regulate the admission of evidence of consent of the victim in a crime of sexual violence. In particular, this evidence should not be admissible in the circumstances outlined below. A closed hearing to consider the admissibility or relevance of such evidence should be available as of right, outside the presence of the jury in jurisdictions with jury trials. These rules should apply to all crimes of sexual violence, whether individual acts of sexual violence or those committed as part of a crime against humanity or war crime.

Rule 70: Principles of evidence in crimes of sexual violence
(a) Consent cannot be inferred by reason of any words or conduct of a victim where force, threat of force, coercion or by 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.

Rule 72: In camera procedure to consider relevance or admissibility of evidence
1. Where 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 .. [rule 70 above] 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 case.

2. In deciding whether the evidence … is relevant or admissible, a Chamber shall hear in camera views of the Prosecutor, the defence, the witness and victim or his or her legal representative, if any, and shall take into account whether the evidence has a sufficient degree of probative value to an issue in the case and the prejudice that such evidence may cause …

3. Where the Chamber determines that the evidence … is admissible in the proceedings, the Chamber shall state on the record the specific purpose for which the evidence is admissible …

In many national justice systems, the key issue in a trial for rape and other forms of sexual violence will be whether the victim consented to the act alleged. Evidence seeking to prove consent is often used in ways that potentially draw on the decision-maker’s gendered assumptions about women’s ability to consent to a sexual act, and can lead to the admission of irrelevant evidence that reinforces such assumptions in a manner that seriously prejudices the impartial consideration of victims’ claims. For example, evidence of what the victim said can be taken out of context to imply consent, despite evidence of the use of force or coercion by the perpetrator. In addition, the fact that the victim did not struggle or fight with the perpetrator is often used as evidence of consent, regardless of the circumstances. Some jurisdictions require proof of physical resistance by the victim in order to prove rape.(103)

The Assembly of States Parties of the ICC has adopted rules on the issue of consent that are very similar to those adopted by the Yugoslav Tribunal. These rules recognize that certain types of evidence cannot be used to imply consent. For example, silence or lack of resistance cannot be used to imply consent. This rule has been applied in the European Court of Human Rights judgment in MC v. Bulgaria, where the respondent state was held to have failed its obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms because national rape laws required physical evidence of resistance to prove rape. The Court stated (referring to developments at the Yugoslav Tribunal) " … the evolving understanding of the manner in which rape is experienced by the victim has shown that victims of sexual abuse - in particular girls below the age of majority - often provide no physical resistance because of a variety of psychological factors or because they fear violence on the part of the perpetrator … Moreover, the development of law and practice in that area reflects the evolution of societies towards effective equality and respect for each individual’s sexual autonomy."(104) Since the 1980s many countries have also reformed their own national rape laws to exclude a requirement of resistance.(105)

Consent also cannot be inferred from words or conduct of the victim where the victim was subjected to force, threat of force or a coercive environment (which could include detention) or there were other circumstances that would make the act non-consensual, such as mental incapacity or the youth of the victim. This rule is very important because it means that words or actions of the victim cannot be taken out of context when, for example, the victim is being threatened, forced or coerced. The rules also state that if the defence wishes to introduce evidence of consent, this evidence must be considered by the judges in an in camera (closed) hearing. This means that the evidence cannot be heard by the public unless the judges decide that it is admissible and that it should be made public.

(c) Evidence of prior sexual conduct

Goal: Your country should ban courts from inferring the credibility, character or predisposition to sexual availability of a victim by reasons of the prior or subsequent sexual conduct of the victim. In determining whether such evidence might be relevant to some other issue, courts should conduct a closed (in camera) hearing. The ban on the admission of evidence regarding the prior or subsequent sexual conduct of the victim should apply to individual acts of sexual violence, as well as those that are crimes against humanity or war crimes.

Rule 70: Principles of evidence in cases of sexual violence

…

(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 71: Evidence of other sexual conduct

In 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.

* Article 69(4): The Court may rule on the relevance or admissibility of any evidence, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness, in accordance with the Rules of Procedure and Evidence.

Evidence of the prior or subsequent sexual conduct of the victim is admissible in many national justice systems during a trial for crimes of sexual violence. This evidenc