Happenings in The Hague: Spotlight on Needed Improvements to Sexual and Gender-Based Crimes Investigations and Prosecutions at the ICC

Credits: Form Native

The Hague, Paris, 19 June 2023 - On the occasion of the International Day for the Elimination of Sexual Violence in Conflict, FIDH publishes a new “Happenings in The Hague” series on the needed improvements in terms of investigations and prosecutions for sexual and gender-based crimes (SGBC) at the International Criminal Court (ICC). This comes at a time when the ICC Office of the Prosecutor is reviewing its 2014 Policy Paper on SGBC and has asked civil society organisations for their input. FIDH sent its recommendations, highlighted in this Q&A, and hopes to exchange on a new draft SGBC Policy Paper in the coming months.

1) I heard the Office of the Prosecutor of the International Criminal Court (ICC) wants to update its policy focusing on sexual and gender-based crimes. What is this policy about and what exactly is happening to it?

You’re absolutely right! The Policy paper on Sexual and Gender-Based Crimes was adopted in 2014 by Prosecutor Fatou Bensouda. It focuses on ways to improve coordinated efforts and secure accountability for SGBC under the ICC Statute, which codified the broadest range of SGBC in the history of international law. Back then it was a major step in the fight against impunity for SGBC and an indicator that they had become more of a priority to the OTP. It quickly became a reference document, even beyond the OTP, for external actors working on these crimes. Very few documents like this existed before and it helped shape the OTP’s work in terms of understanding, investigating and prosecuting these crimes.

But 2014 is already far away and a lot has happened since then! There has been great successes and positive developments, such as the convictions of Bosco Ntaganda and Dominic Ongwen for an unprecedented range of sexual crimes. Unfortunately, there has also been setbacks and missed opportunities... All these developments, whether positive or negative, are not reflected in the current policy. Circumstances have also changed, the nature of the conflicts, the challenges faced by both the victims and affected communities, and the actors trying to document SGBC, etc.

So the Office of the Prosecutor has decided to “renew” its Policy paper, and for that launched public consultations, inviting all relevant actors to submit their comments on the 2014 version.

2) Did FIDH send something?

Of course! Accountability for sexual and gender-based violence (SGBV) is a cornerstone of FIDH’s mandate in the defense of human rights and has been at the forefront of FIDH’s international justice activities for many years. FIDH and its members organisations have conducted fact-finding activities, raised awareness, supported victims and affected communities in seeking justice at the national, regional and international level and published many report in relation to accountability for SGBC. We also recently published a Glossary on SGBV related terms. Actually, FIDH was even involved in the discussion leading to the adoption of the first version of the Policy paper in 2014!

So .. now it’s clear we couldn’t let that opportunity slip away, right?

FIDH’s submission contains comments and recommendations on several areas, including: the terminology and definitions provided in the 2014 Policy and used by the OTP, the somehow lack of inclusivity of the Policy paper, the need for an enhanced victim-centred approach, considerations related to the various stages of the proceedings at the Court (i.e. preliminary examinations, investigations and prosecutions) as well as recommendations on complementarity with domestic jurisdictions and on the necessity to enhance the Office’s transparency.

3) Looks like you covered a lot .. could you maybe walk me through it?

In a nutshell …

The recommendations related to terminology and definitions, inclusivity and victim-centred approach are cross-cutting and relevant throughout the document. For example, FIDH considers that the Policy as it stands does not sufficiently reflect the contemporary and non-discriminatory notions of gender. Why ? Because everything is about “male” and “female”, “women and girls” and “men and boys” – every definition that has a gender component (and a fortiori their implementation..) is binary. While this is a directly application of the definition contained in the Rome Statute (adopted 25 years ago … !), it is problematic because exclusive of other genders (i.e non-binary, genderqueer, agender, bigender, genderfluid, etc.). It can influence the work of the OTP and negatively impact the approach, analysis, or understanding of OTP personnel who may lack gender expertise or knowledge, and eventually prevent crimes from being investigated and perpetrators prosecuted.

When the Policy paper goes beyond this binary approach, for example in sections providing practical information on investigations and prosecution, the gender-neutral narrative is also problematic.

4) First too binary, now too gender-neutral .. could you explain?

Yes, picture this: while this could be a way to reflect that all genders are considered, it also translates into a lack of acknowledgement of gender-specific features and challenges. When it comes to investigating and charging SGBC, such specificities must be considered as they will impact how such crimes are reported, whether and how victims and witnesses might testify, how they are interlinked with other crimes, and eventually how judges might characterise the crimes. As an example, in situations where crimes are committed against men or non-binary persons with male genitals, by men or non-binary persons with male genitals, and where domestic laws prohibit acts such as “sodomy” or “homosexuality”, the risks associated with testifying on sexual crimes are much higher and likely to prevent the victims from reporting the crimes. It is therefore essential that the Policy Paper better reflect gender-specific features and challenges and explicitly states whether/how the Office is taking them into account in its work.

On this topic, the recent Policy paper adopted by the OTP in December 2022 on the Crime of Gender persecution can serve as a guide. Because it is newer, and because it has been drafted by Lisa Davis, Special Adviser to the Prosecutor on Gender Persecution and internationally recognized expert on international human rights and gender issues, including women’s and LGBTQIA+ rights, based on consultations with external actors, the Gender Persecution Policy is much more reflective of the more recent developments in the field of gender, more sensitive to gender features and challenges.

5) So concretely, what are your recommendations here? And on victim-centred responsive approach?

On what we just discussed, we recommended the OTP to:
 Adopt the same narrative and definitions as the OTP Policy Paper on Gender Persecution adopted in December 2022 and advance the binary approach to “gender” in order to be inclusive of all genders.
 Clearly indicate in the Policy that the OTP investigates and prosecutes crimes affecting women and girls, men and boys as well as other non-binary genders.
 Include more explicit gender-specific features during the preliminary examinations, investigations, and prosecutions.
 Increase the number and quality of investigations of SGBC against male victims and LGBTQI+ persons.

On victim-centred responsive approach, we mostly ask for better communication and transparency, both on how the victim-responsive approach is applied by the OTP and to external stakeholders, namely victims and affected communities, including on what the ICC is realistically able to offer witnesses and victims to minimise unrealistic expectations. We also recommended, related to that, that the SGBC Policy paper include a more explicit reference to outreach-related activities.

6) Speaking about transparency... you said that’s also another area where you made recommendations, right? And complementarity?

Indeed !

On the question of transparency, we focused mainly on enhancing communication in terms of decision making. In particular we highlighted the need to publicly present the reasons for deciding not to investigate, prosecute or appeal SGBC charges and the fact that this should appear clearly in the SGBC Policy paper, as well as adding clarifications on the implementation of the policy papers.

Now on complementarity, that’s also very important, and it’s good that you remembered. We recommended that the OTP adopt a comprehensive and consistent approach and more importantly that the Policy paper clarifies how national accountability efforts for SGBC are assessed by the OTP before deciding to open or close a preliminary examination or an investigation, or to take position on the admissibility of a case. This is crucial – because often domestic efforts to address certain crimes (i.e., torture, murder, and pillage) hide the complete lack of action and accountability regarding SGBC, whose perpetrators thus remain free and survivors are denied access to justice or remedy… And as we would all agree, complementarity should not rhyme with impunity!

7) We can’t have complementarity at all costs, indeed. And last but not least, you mentioned recommendations related to the different stages of the proceedings?

We did indeed have a couple on recommendations that related to the various stages of the proceedings at the ICC: on preliminary examinations (PE), investigations and prosecutions.

For the first two, PE and investigations, we mostly recommended that the OTP’s work and engagement start at the earliest stage, and that this be reflected in the SGBC Policy paper. At the earliest stage means even before the opening of preliminary examinations where the Office has received numerous communications and material information regarding violations, notably by NGOs. Why? Because the earlier you start the work, the faster you get a grasp of and assess the situation and therefore the more you can reduce the length of the proceedings leading to the issuance of an arrest warrant. Early engagement would also help building a strong network with civil society and local communities as early as possible to facilitate access to victims and witnesses. We know the crucial role played by civil society and local communities in accountability… so it’s important to reach out and build a lasting and trustful relationship.

8) I see, and related to the prosecution/charging?

We made three important recommendations:

 Bring, as supported by the evidence, charges for a wide variety of sexual and gender-based crimes, including “other forms of sexual violence”; and clarify what the Office considers to be “acts of a sexual nature”, a key element of the crime of “other forms of sexual violence” under the Rome Statute and the Elements of crimes. The Rome Statute is the first international criminal instrument to codify the war crime and crime against humanity of “other form of sexual violence”. As highlighted by FIDH and WIGJ in their report taking stock of Prosecutor Bensouda’s legacy in terms of accountability for SGBC, “[t]he use of this provision has great potential to address acts of sexual violence that might otherwise go unrecognised and undeterred”. But in practice, it hasn’t been used much by the Prosecutor and when it has, the charges have been dismissed by the judges. FIDH therefore considers that the Policy paper should have a greater focus on this specific crime. It could be a good starting point to clarify this provision and the approach the OTP is taking when it comes to including a more systematic charging and a better contextualisation of the crimes.

 Review and evaluate the OTP’s strategy for addressing the criminal responsibility of the accused and charging modes of liability in cases involving SGBC. Several cases have illustrated the difficulty to prosecute perpetrators of SGBC at the ICC. Difficult in what sense? In choosing who is ultimately the “most responsible” of these crimes (the direct perpetrator, the commander who authorized it or did not prevent it?) and under which modes of liability they should be prosecuted. A good example of this difficulty is the acquittal of Jean-Pierre Bemba (it’s a bit complicated .. and while this wasn’t the only element leading to that decision which affected hundreds of victims, the interpretation of the responsibility in this case showed the necessity to have a clear strategy to bring adequate evidence).

 Acknowledge that SGBC charges have been historically more onerous to prove, and considering this reality that the Office will work strategically to ensure sufficient evidence is gathered to prove the charges. Don’t get us wrong, this shouldn’t be the case. But it’s unfortunately the reality. It’s often harder to convince judges when it comes to SGBC charges and therefore a greater effort should be put into it. In an ideal (judicial) world, SGBC should not require more or stronger evidence than other crimes, but the system is far from ideal, and we should do everything possible to secure accountability.

9) Absolutely... ultimately all these recommendations are important, but what about the real implementation of all this?

Glad you asked ! And please bear with us for another slightly long response… here are some of our recommendations:

 Review the structure of the Policy Paper on SGBC to enhance its clarity and practicality, separating policy statements from practical information and including key documentation, and eventually creating a more user-friendly summary version. To be as useful as possible, as accessible as possible, key and practical information should not be lost throughout the document with broader and general policy statements. They respond to different goals and target different audiences. Thus, it would be beneficial to ensure that they are not coupled in a way that they are both lost to the various target audiences.

 Consult local experts to adapt the wording of the Policy Paper on SGBC to ensure a more representative working tool to the contexts it is designed to apply to. Local experts are the best placed to ensure that the document can be implemented in various contexts, regions, cultures.

 Translate the document into relevant languages of ICC situation countries, for better accessibility, visibility, and implementation. Well .. this is kind of obvious, isn’t it ?

 Provide a concrete implementation plan for each policy paper adopted or revised by the OTP, and designate focal points to monitor its enforcement and communicate on the Office’s efforts.

This last point is probably one of the most important! Despite the lack of binding nature of the policy papers, there should be a form of accountability with regard to their implementation. When adopting such papers, the OTP does not only recognize the importance of the topic the policy covers, but makes a commitment that should not stay in vain. Adopting a clear roadmap or implementation plan would considerably help the meaningful and timely implementation of OTP’s policies, as well as provide more clarity to external actors and guidance to domestic jurisdictions and authorities. What about a focal point on implementation ?

10) All those are very important recommendations, and it’s great the OTP launched this consultation… what will be the next steps?

We hope broader consultations, in person and remotely, involving colleagues from ICC situation countries as well as international experts. Revising this 2014 Policy is a really good and timely project and needs to be done meaningfully. Just like you, we’re waiting to see what the next steps will be, but while we don’t have the answer, we surely know that we will continue to consider it a priority.

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