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ICC Must Strengthen Sexual Violence Protections

JURIST Guest Columnists Chen Reis of the University of Denver and Lynn Lawry (pictured) of Brigham and Women's Hospital argue that unified action must be taken by parties other than the International Criminal Court in order to provide adequate and sustainable support for victims of sexual crimes during and post-conflict...

The conflict in the Democratic Republic of Congo (DRC) has been marked by reports of human rights violations against civilians. Particular attention has been paid by media, activists and policy makers to the use of sexual violence by armed forces in the DRC as a "tactic of conflict." This form of violence has been associated with the government as well as those fighting against the regime of President Joseph Kabila.

A population-based study conducted in conflict-affected areas in eastern DRC in 2010 (North and South Kivu Provinces and Ituri district) documented nearly two decades of violations committed by all parties to the conflict against civilians. Many of the reported abuses, including widespread sexual violence, likely constitute international crimes that fall under the remit of the International Criminal Court (ICC).

Sexual violence as a "tactic of conflict" has gained attention in a number of key international fora and initiatives, with a particular focus on ending impunity for these crimes. In 2012, the UK announced a major initiative aimed at prevention of sexual violence in conflict. One particular focus of the initiative aims to improve investigations of sexual offenses in order to promote prosecutions. This topic of focus for Britain's presidency includes deployment of expert teams for investigation and evidence collection, as well as plans for new international protocols on the investigation and documentation of sexual violence in conflict.

The UN Office of the Special Representative of the Secretary General on Sexual Violence in Conflict (SRSG), now on its second mandate holder, has included a focus on ending impunity in its agenda as of its inception in 2010.

The UN Security Council (UNSC) has issued a number of resolutions specifically focused on sexual violence as part of their Women Peace and Security agenda, most recently establishing a monitoring and reporting mechanism to enable the naming and shaming of state and non-state armed forces found to be using sexual violence as a tactic of conflict. Lists of forces that use sexual violence as a tactic of armed conflict are issued in annual reports by the SRSG.

The ICC is also considered a critical forum for ending impunity for sexual violence. Most of the cases before the ICC include sexual violence crimes in the indictment (crimes against humanity and/or war crimes). These cases relate to violence in Uganda, DRC, Darfur, Central African Republic (CAR), Kenya and Cote d'Ivoire. The jurisprudence of the court is still to be established, however, as the only two decisions handed down thus far are in the cases of The Prosecutor v. Germain Katanga and The Prosecutor v. Thomas Lubanga Dyilo. The ICC has also not yet proven itself to be particularly well suited for trying cases of sexual violence.

The NGO Women's Initiatives for Gender Justice has written extensively about crimes of sexual violence and the ICC, and has issued annual "report cards" for the Court's handling of these crimes since 2005. In particular, they have documented [PDF] the difference between how gender-based crimes are treated by the ICC, in comparison to other crimes. When charges for gender-based crimes are actually brought, they are often dropped or re-characterized as other crimes. This occurs most often with charges that seek an arrest or a summons to appear.

One major challenge concerns the lack of clarity as to what constitutes linkage evidence proving a connection between rapes committed by members of various combatant groups and the high level individuals who are the target of ICC indictments.

Over the last six years, evidence for cases involving crimes against humanity relating to sexual violence brought before the ICC has been approached in new ways. The ICC is considering moving away from testimony evidence, and instead looking at other sources of data to clarify relevant details about these crimes. Working groups, expert panels and conferences have slowly defined what types of data may be useful for prosecutors and judges in these cases, and other international criminal tribunals have utilized this data successfully.

However, given the lack of clarity as to what the ICC judges will consider as linkage evidence for sexual violence, the development of investigation protocol aimed at international prosecutions may be premature. There are costs and risks for survivors associated with traditional evidence collection, especially in settings where access to services is limited. More support in the national systems is needed, as the ICC neither has the jurisdiction or capacity to handle all of these cases. UNSC Resolution 1820 [PDF] explicitly recognizes the need for various parties, such as UN member states and financial institutions, to assist in the development and strengthening of national judicial systems. This support will enable nations to provide sustainable assistance to victims of sexual violence in armed conflict and post-conflict situations, and must be done while simultaneously supporting international criminal processes.

Chen Reis is the Director of the Humanitarian Assistance Program for the University of Denver.

Lynn Lawry is the Director of the Initiative in Global Women's Health for Brigham and Women's Hospital and Harvard Medical School.

Suggested citation: Chen Reis and Lynn Lawry, Challenges for Justice in Democratic Republic of Congo for Human Rights Violations, JURIST - Hotline, Mar. 7, 2013, http://jurist.org/hotline/2013/03/reis-lawry-icc-sexual-violence.php

This article was prepared for publication by Theresa Donovan, an assistant editor with JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org

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