ICC outside

Pursuit of gender justice

15 April 2019
Towards accountability and inclusivity in international courts
It’s been just over 20 years since the formation of the 1998 Rome Statute – the treaty establishing the International Criminal Court (ICC) – which includes a longer list of sexual and gender-based crimes than any other previous instrument within the global courts.

However, the ICC is yet to issue any convictions for these crimes, and interpretations of the term, ‘sexual violence,’ have been narrow and exclusionary.

Dr Rosemary Grey has devoted her career to research in the areas of gender justice & international criminal law. She is interested in identifying gaps within the criminal justice system to ensure all people – men, women, boys, girls, and people of all gender orientations and sexual identities – receive fair, equal and accessible representation, and just reparations.

For the last decade, her research has focused on the prosecution of sexual and gender-based crimes in the International Criminal Court, culminating in her 2019 book with Cambridge University Press.

Recently she’s turned her attention to matters of accountability and inclusivity in other global courts. She is currently working with the Sydney Law School and regional specialists in the Sydney Southeast Asia Centre to conduct the first comprehensive gender assessment of the United Nations backed ‘Khmer Rouge Tribunal, whose mandate is to prosecute genocide, war crimes, crimes against humanity, and other offences committed in Cambodia from 1975 to 1979.

The hard facts

Prosecuting international crimes is an immensely difficult task, according to Dr Grey. The crimes are legally complicated; the cases include hundreds or thousands of victims; and investigations take place in conflict or post-conflict states, with added security risks.

“These challenges are compounded for gender-based crimes,” she continued, “especially sexual violence crimes.”  

“There’s often shame and stigma associated with the crime, meaning it may take longer for investigators to build trust with the victims. There also remain outdated assumptions that sexual violence is a ‘lesser’ crime in situations of war and genocide, with the result that it’s not always investigated and charged as a priority.”

“And even where sexual violence is charged, there is a tendency for judges in international criminal tribunals to see it as outside the sphere of influence of the accused, who is typically a high‑level military or political leader, rather than a foot soldier who physically commits the crime.”

Defining sexual violence

A second challenge facing the ICC in matters of gender justice relates more specifically to crimes that are sexual in nature.

Neither the Court’s statute nor its case-law outlines what makes an act of violence ‘sexual’, explains Dr Grey. Initial efforts to prosecute forced nudity and forced circumcision as ‘sexual violence’ in the ICC, for example, have failed.

Call it what it is’ is a global movement – led by Women’s Issues for Gender Justice and supported by organisations and researchers around the world, including Dr Grey – to develop a survivor-led interpretation of the concept of ‘sexual violence’.

“Such a definition would consider acts that may be intended as sexual by perpetrators, and/or perceived as such by victims in specific cultural environments,” said Dr Grey.

“By listening to diverse interpretations of the concept of ‘sexual violence’, we hope to offer the ICC a toolkit, so that the court, judges, prosecutors and associated parties can better understand how this type of violence is experienced around the world.”
Dr Rosemary Grey

Responses are being collected in the form of an international survey in 13 languages, as well as over 20 consultations with survivor networks in 14 different countries.

The campaign was launched in December 2018, at the annual meeting of ICC member States, where Dr Grey spoke on an expert panel. It will run for a year, with the aim of presenting the proposed interpretation of ‘sexual violence’ at the next annual meeting of ICC member States in December 2019.

Already, the responses are starting to show the breadth of thinking on this topic. Examples of sexual violence have included forced nudity, forced witnessing of sexual violence, forced virginity testing, total abortion bans, forced abortion and non-consensual sharing of sexual images.

Driving long term change

“My work to date has all centred around themes of accountability, global courts and politics, conflict situations and gender justice,” said Dr Grey.

“Driving this work is a commitment to a more gender-sensitive, more inclusive system of international criminal justice.”

“I’ve been very lucky in the connections I’ve made, and the opportunity to use my research to engage in practical outcomes with impact.”  

In July 2019, Dr Grey will spend time in Cambodia for further fieldwork and to present at an international genocide conference.

Image: International Criminal Court, The Hague

Dr Rosemary Grey

Related articles