Publications

Dear Prosecutor Khan: It is with great enthusiasm that we write to you about the development of the comprehensive policy paper to advance accountability for the crime against humanity of persecution on the grounds of gender. In the 1990s, MADRE housed the Women’s Caucus for Gender Justice, a worldwide coalition of women’s rights activists working to address gender gaps in the draft Rome Statute. In 2018, MADRE and our allies once again led an international coalition that successfully further affirmed the understanding of gender persecution under international law for the draft crimes against humanity treaty. Today, MADRE is serving as a Secretariat for civil society organizations from across the world to help ensure broad civil society input. To this end, MADRE has compiled and consolidated the priorities and recommendations from organizations across the world for your consideration. As you will see below, 222 feminist organizations and academic institutes from 80 countries and territories have joined this statement of principles and priorities that we now share with you. Read the Full Letter

Introduction Having been granted leave to submit amicus curiae observations, we respectfully offer these observations about the Rome Statute’s definition of ‘forced pregnancy’. This is the first occasion that the Appeals Chamber will provide its interpretation of this crime, which was expressly listed in an international instrument for the first time in the Rome Statute. The Rome Statute enumerates forced pregnancy as a crime against humanity and as a war crime in both international and non-international armed conflicts. The term ‘forced pregnancy’ is defined in Article (Art.) 7(2)(f) of the Rome Statute (RS), which states: ‘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. Our amicus curiae brief addresses three issues pertinent to this definition: the irrelevance of national laws relating to pregnancy when interpreting the Rome Statute’s definition of forced pregnancy; the elements of ‘forced pregnancy’ as a war crime and a crime against humanity; and the grounding of the crime of forced pregnancy in human rights that protect personal, sexual, and reproductive autonomy. In doing so, we recall that the Court must interpret the Rome Statute and Elements of Crimes, including as they relate to forced pregnancy ‘consistent with internationally recognised human rights’ and ‘without any adverse distinction founded on grounds such as gender’ pursuant to Art. 21(3) RS. Additionally, the Court must interpret the Rome Statute in light of its object and purpose, namely, to ‘put an end to impunity for the perpetrators of most serious crimes of concern to the international community as a whole’, including the full range of sexual and gender-based crimes enumerated in the Statute. In light of their expertise, amici also seek to provide guidance on internationally recognised human rights relating to personal, sexual, and reproductive autonomy, and explain their relevance to the interpretation of the Rome Statute’s crime of forced pregnancy. Read Full Legal Filing

Introduction In response to the Appeals Chamber’s order, we respectfully seek leave to file amicus curiae observations on the Rome Statute’s definition of ‘forced pregnancy’, noting that this is the Appeals Chamber’s first opportunity to interpret this crime. Expertise Dr Rosemary Grey (lecturer, Sydney University Law School) is an expert in gender issues in international criminal law. Her publications include 13 peer-reviewed journal articles and her monograph Prosecuting Sexual and Gender-based Crimes at the International Criminal Court (Cambridge University Press, 2019). From 8 June to 8 September 2015, she worked with the ICC Office of the Prosecutor through the Internship and Visiting Professional Programme, where she assisted with legal research on topics including forced pregnancy. Women’s Initiatives for Gender Justice (WICJ) is an international women’s human rights NGO advocating for accountability for sexual and gender-based crimes through the ICC’s work, including with conflict affected communities in Uganda, since 2004. It is the successor of the Women’s Caucus for Gender Justice (1997-2003) that brought together over 300 women’s human rights advocates and organizations in the Rome Statute negotiations. Global Justice Center (GJC) is an international NGO advocating for justice and accountability for sexual and gender-based violence and violations of reproductive autonomy in situations including Syria, Myanmar, and others. Its 2018 report, Beyond Killing: Gender, Genocide, & Obligations Under International Law, was the first of its kind to offer a comprehensive gender analysis of the crime of, and international legal obligations surrounding, genocide. Amnesty International (AI) is a worldwide movement of people who campaign for internationally recognized human rights to be respected and protected, with over 50 years’ experience documenting and campaigning against human rights violations around the world. First proposed argument: Irrelevance of national law Art. 7(2)(f) of the Rome Statute states: ‘“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 Trial Chamber stated that the final sentence of Art. 7(2)(f) ‘does not add a new element to the offence – and is thus not reproduced in the Elements of Crimes – but allays the concern that criminalising forced pregnancy may be seen as legalising abortion. Mr Ongwen appears to argue that the Trial Chamber erred by interpreting the crime of ‘forced pregnancy’ without analysis of abortion laws in the state where the crimes occurred (Uganda). That argument is incorrect. National laws on abortion have no bearing on the Rome Statute’s definition of ‘forced pregnancy’. The second sentence of Art. 7(2)(f) does not make the ICC’s jurisdiction over ‘forced pregnancy’ dependent on national legislation, nor create an element of the crime. It simply affirms that the legality of the relevant conduct under national law is distinct from its legality under international law. This is true of all crimes in the Rome Statute, but was made explicit for forced pregnancy in order to satisfy states who were concerned that defining forced pregnancy as a crime in the Rome Statute would affect their legal ability to regulate abortion under national law. Thus, regardless of whether conduct amounting to ‘forced pregnancy’ is consistent with national law, an individual who commits such conduct could be prosecuted for ‘forced pregnancy’ as a war crime and/or crime against humanity under the Rome Statute (if the contextual elements for were met, and subject to the ICC’s jurisdiction and admissibility rules). Victims in states with strict abortion laws do not enjoy lesser protections under the Rome Statute than those in states with more liberal abortion laws. Read Full Legal Filing

Dear Madam Prosecutor, As your term as prosecutor of the International Criminal Court (ICC) draws to a close, we are writing to thank you for your longstanding service and significant contributions to the ICC, as well as to acknowledge the progress that the Office of the Prosecutor has made during your tenure. While civil society organizations have identified areas for improvement and will continue to advocate for changes to ensure effective investigations and prosecutions, the office has made considerable advances in a number of situations and preliminary examinations under your leadership. We especially admire the high degree of independence you have exhibited during your mandate. Your office has opened investigations in the face of immense pressure and politicized opposition. You have done this work at great personal and institutional cost. Developments on the ground in Myanmar, Afghanistan, and Palestine over the last few months have confirmed that accountability in those and other situations is essential, especially when the ICC is the only remaining option for justice. We will call on the next prosecutor to build on this legacy and continue to ensure that the court fulfils its mandate, regardless of the nationality or position of alleged perpetrators. Read the Full Letter

The undersigned organizations and individuals write to express grave concerns and unequivocally oppose the Trump administration’s use of the sanctions authority of the United States to attack the International Criminal Court (ICC), an independent judicial institution dedicated to combatting impunity for the gravest crimes known to humanity. Many of the undersigned spoke out against steps in this direction taken earlier this year by the U.S. administration. We now issue this further statement because it is uniquely dangerous, extreme, and unprecedented to utilize a mechanism designed to penalize criminals, their aiders, and abettors, against an independent judicial institution. Asset freezes and entry restrictions are tools intended to combat individuals and entities constituting a threat to U.S. national security. By applying these measures to a court that 123 countries – and on two occasions, the United Nations Security Council – have entrusted with providing accountability for atrocity crimes, the United States has brought upon itself the stigma of siding with impunity over justice. The administration’s actions jeopardize the ability of desperate victims to access justice, weaken the credibility underpinning the use of sanction tools in other contexts, and put the United States at odds with its closest allies. Download the full Letter

On 14 November 2019, the International Criminal Court (“ICC” or “the Court”) authorized the Court’s Prosecutor to investigate alleged international crimes occurring during a wave of violence in Rakhine State, Myanmar in 2016 and 2017. The investigation follows a brutal campaign of violence by Myanmar’s security forces against Myanmar’s Rohingya Muslims. These so-called “clearance operations” were conducted through widespread and systematic murder, rape and sexual violence, and other abuses that forced more than 740,000 Rohingya to flee to Bangladesh. The ICC Prosecutor’s investigation, and any prosecutions that result, is one process among many aimed at accountability for crimes committed by Myanmar’s security forces (Tatmadaw). While somewhat limited in scope, the investigation carries the potential to hold individuals responsible for grave violations against the Rohingya and other ethnic minorities. This fact sheet answers fundamental questions about the ongoing ICC investigation and individual criminal responsibility for crimes committed against the Rohingya. Download Fact Sheet

The undersigned organizations express their deep concern regarding today’s announcement by Secretary of State Pompeo and other senior U.S. officials that the United States, among other things, has invoked emergency powers in order to threaten asset freezes and other punitive actions against officials of the International Criminal Court, their family members, and those who assist their investigations. The International Criminal Court exists because it is difficult to hold government officials and other powerful actors accountable when they commit grave human rights abuses. That impunity, in turn, is corrosive to the broader rule of law, the prospects of lasting peace, and respect for the dignity of all. Since the ICC’s establishment in 2002 as a court of last resort, diverse coalitions of faith-based organizations, human rights advocates, legal practitioners, victims of atrocities, and other constituencies have often looked to it to complement and reinforce their work for justice. Like all other human institutions, the ICC has room for improvement. Nevertheless, from Uganda and the Central African Republic to Darfur and the situation in Bangladesh/Myanmar, the ICC continues to play a vital role, filling gaps in the justice system by independently investigating and prosecuting grave atrocity crimes when national authorities do not do so, or when they seek out help. Download the Letter

Gender permeates the planning, commission, and resolution of criminal acts within the International Criminal Court’s jurisdiction. It is woven into perpetrators’ planning and commission of crimes, as well as victims’ (individual and collective) experience and recovery of acts committed against them. Accordingly, gender must be a central criterion in the group of independent experts’ review of the International Criminal Court (“ICC” or “the Court”) and the Rome Statute system. Laudably, the Rome Statute was among the first international treaties to extensively address sexual and gender-based violence. Moreover, from the beginning of her term ICC Prosecutor Fatou Bensouda has made it a priority to close the gender justice gap, as evidenced by her Policy Paper on Sexual and GenderBased Crimes, the first ever such policy for an international court or tribunal. Despite these foundational pillars and priorities, in the 18 years of the Court’s operation there has only been one standing conviction on sexual violence. This submission highlights avenues for improving gender justice at varying stages of a case. It identifies opportunities for progress regarding staffing and prosecutorial strategies on case selection, prioritization, and investigation that hinder access to justice in these cases. Until gender is mainstreamed throughout all stages of ICC cases, the Court will be limited in its capacity to deliver justice.

REUTERS/Mohammad Ponir Hossain Also published by Ms. Magazine By Katherine Comly Ask any feminist how they think their government is doing at holding perpetrators of sexual violence accountable and most would respond with an emphatic “poorly”— at best. Internationally, there are moves being made to tackle sexual violence, like awarding the Nobel Prize to Nadia Murad and passing the first Security Council Resolution on the issue. Still, they go nowhere near solving systemic problems. There currently exists, however, a major opportunity to reform how the international justice system addresses sexual violence: the investigations into genocidal violence against the Rohingya in Burma. A gendered understanding of these crimes is essential and will fulfill the international community’s responsibility to recognize and punish all forms of genocidal violence. Two years ago this week, the Burmese military began a systematic campaign of brutal violence against Rohingya Muslims in Burma’s northern Rakhine State. The military launched attacks called “clearance operations,” that included burning villages, killing civilians, and carrying out systematic sexual violence against the Rohingya. In July, the prosecutor of the International Criminal Court (ICC), Fatou Bensouda, requested to investigate alleged crimes committed against the Rohingya, including deportation, persecution, and other inhumane acts. Her investigation must include the reports of sexual violence from the UN’s Fact-Finding Mission on Myanmar, which showed that sexual violence occurred with such intensity that it may amount to genocide. Despite the prevalence of sexual violence in conflict, there is only one standing conviction of sexual violence in the history of the ICC: the recent conviction of Congolese Commander Bosco Ntaganda. The role of gender in genocide has long been neglected, but the ICC has a chance to change that in its investigation of the Rohingya. There are two key insights on gender and genocide that must be understood for the Rohingya investigation. First, genocide can be carried out with acts that don’t immediately kill but are intended to destroy a national, racial, ethnic, or religious group. Rape, forced sterilization, and forced pregnancy are examples of sexual violence that, when paired with the required level of intent to destroy, can constitute genocide. There are ample reports of such acts perpetrated against the Rohingya. For instance, Rohingya women were subjected to female genital mutilation after rape. This speaks to the military’s intent to destroy the very means of their “enemy’s” reproduction. And non-killing crimes of genocide such as these are more often committed against women than they are against men. Second, while men are subject to non-killing crimes of genocide, the crimes committed against women are distinct. The UN High Commissioner for Human Rights reported that in the 2016 “clearance operations,” the military would separate Rohingya communities by gender. Then, men would be detained, beaten, and killed, while women would be subjected to sexual violence, public humiliation, and strip searches. The Burmese government has rejected allegations of rape during the clearance operations, calling them “fake rape.” They also denied other reports of sexual violence despite extensive documentation by the UN’s Fact-Finding Mission on Myanmar. One Rakhine border security minister responded, “Look at those women who are making these claims — would anyone want to rape them?” There is a clear gendered approach to the way crimes were committed against the Rohingya. ICC Prosecutor Bensouda should adhere to her 2014 policy paper in which she states that a gendered perspective will be integrated into all stages of a case, including the investigation. To only investigate genocide committed against men minimizes both the sexual violence committed against women and the genocide itself. Centering gender in the pursuit of justice for the Rohingya sends a strong message that the days of impunity for sexual violence are numbered.