Executive Summary
June 2014
| 1. | Over the past few decades, the international community has taken progressive steps to put an end to impunity for sexual and gender-based crimes. The Statute of the International Criminal Court (ICC) is the first international instrument expressly to include various forms of sexual and gender-based crimes — including rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, and other forms of sexual violence — as underlying acts of both crimes against humanity and war crimes committed in international and non-international armed conflicts. The Statute also criminalises persecution based on gender as a crime against humanity. Sexual and gender-based crimes may also fall under the Court’s jurisdiction if they constitute acts of genocide or other acts of crimes against humanity or war crimes. The Rules of Procedure and Evidence (‘Rules’) and the Elements consolidate important procedural and evidentiary advancements to protect the interests of victims and enhance the effectiveness of the work of the Court. | ||||
| 2. | Recognising the challenges of, and obstacles to, the effective investigation and prosecution of sexual and gender-based crimes, the Office elevated this issue to one of its key strategic goals in its Strategic Plan 2012–2015. The Office has committed to integrating a gender perspective and analysis into all of its work, being innovative in the investigation and prosecution of these crimes, providing adequate training for staff, adopting a victim-responsive approach in its work, and paying special attention to staff interaction with victims and witnesses, and their families and communities. It will increasingly seek opportunities for effective and appropriate consultation with victims’ groups and their representatives to take into account the interests of victims. | ||||
| 3. | The Office recognises that sexual and gender-based crimes are amongst the gravest under the Statute. Consistent with its positive complementarity policy, and with a view to closing the impunity gap, the Office seeks to combine its efforts to prosecute those most responsible with national proceedings for other perpetrators. | ||||
| 4. | The Office pays particular attention to the commission of sexual and gender-based crimes at all stages of its work: preliminary examination, investigation, and prosecution. Within the scope of its mandate, the Office will apply a gender analysis to all crimes within its jurisdiction, examining how those crimes are related to inequalities between women and men, and girls and boys, and the power relationships and other dynamics which shape gender roles in a specific context. In addition to general challenges to investigations conducted by the Office, such as security issues related to investigations in situations of ongoing conflict, and a lack of cooperation, the investigation of sexual and gender-based crimes presents its own specific challenges. These include the under- or non- reporting owing to societal, cultural, or religious factors; stigma for victims; limited domestic investigations, and the associated lack of readily available evidence; lack of forensic or other documentary evidence, owing, inter alia, to the passage of time; and inadequate or limited support services at national level. The Office will pay particular attention to these crimes from the earliest stages in order to address such challenges. The establishment of contacts and networks within the community will be prioritised to the extent possible to support the operational activities of the Office, particularly with regard to augmenting its access to information and evidence. | ||||
| 5. | Article 68(1) of the Statute obliges the Office to take various measures to protect the safety, physical and psychological well-being, dignity, and privacy of victims and witnesses, particularly during its investigation and prosecution activities with regard to sexual and gender-based crimes and crimes against children. The Office will strive to ensure that its activities do not cause further harm to victims and witnesses. | ||||
| 6. | Experience has highlighted the importance of managing the expectations of victims and witnesses. The Office has an established practice with regard to keeping witnesses informed of, inter alia, the mandate of the Office, the procedures and options for protection, participation in proceedings, the possibility of being called to testify, the scope and impact of possible disclosure, developments in the case, and reparations, and seeks witnesses’ views, as appropriate. | ||||
| 7. | The Office will ensure that charges for sexual and gender-based crimes are brought wherever there is sufficient evidence to support such charges. It will bring charges for sexual and gender-based crimes explicitly as crimes per se, in addition to charging such acts as forms of other violence within the competence of the Court where the material elements are met, e.g., charging rape as torture. The Office will seek to bring cumulative charges in order to reflect the severity and multifaceted character of these crimes fairly, and to enunciate their range, supported by the evidence in each case. | ||||
| 8. | In appropriate cases, the Office will charge acts of sexual and gender-based crimes as different categories of crimes within the Court’s jurisdiction (war crimes, crimes against humanity, and genocide), in order to properly describe, inter alia, the nature, manner of commission, intent, impact, and context. The Office will also seek to highlight the gender-related aspects of other crimes within its jurisdiction — for example, in the recruitment of child soldiers and enslavement, and, in the case of the latter, their manifestation as trafficking in persons, in particular women and children. | ||||
| 9. | Sexual and gender-based crimes may be committed, inter alia, as a result of implicit or explicit orders or instructions to commit such crimes; as a consequence which the individual is aware will occur in the ordinary course of events — during military operations directed against civilian populations, for instance; or because of an omission (e.g., a failure to order subordinates to protect civilians, or failure to punish similar crimes). The Office will consider the full range of modes of liability and the mental element under articles 25, 28, and 30 of the Statute that may be applicable to each case, and will make a decision based on the evidence. The Office will charge different modes of liability in the alternative, where appropriate. | ||||
| 10. | The Office will propose sentences which give due consideration to the sexual and gender dimensions of the crimes charged, including the impact on victims, families, and communities, as an aggravating factor and reflective of the gravity of the crimes committed. | ||||
| 11. | The Office supports a gender-inclusive approach to reparations, taking into account the gender-specific impact on, harm caused to, and suffering of the victims affected by the crimes for which an individual has been convicted. | ||||
| 12. | Effective cooperation is crucial to the Office and the Court in carrying out their mandate. The Office actively engages with States and other relevant stakeholders in order to improve the effectiveness of its actions, including with regard to sexual and gender-based crimes. It also includes a gender perspective in its public information activities which seek to maximise awareness and the impact of its work. | ||||
| 13. | The ICC is complementary to national efforts. Given jurisdictional and admissibility considerations, and its policy to prosecute those most responsible, the Office will be able to prosecute a limited number of persons. In an effort to close the impunity gap, it is therefore crucial that States comply with their primary responsibility to investigate and prosecute serious international crimes effectively, including sexual and gender-based crimes. The Office will support genuine national efforts, where possible. | ||||
| 14. | The Office also recognises the crucial role that civil society plays in preventing and addressing sexual and gender-based crimes. The Office will seek to support and strengthen cooperation with these organisations, particularly those which have experience in documenting sexual and gender-based crimes and working with victims of these crimes. The Office will enhance its institutional capacity to investigate and prosecute sexual and gender-based crimes with the assistance of its Gender and Children Unit (‘GCU’) and the Special Gender Adviser to the Prosecutor. The Office recognises the need to strengthen its in-house expertise on sexual and gender-based crimes relating to women and girls, and men and boys, both in conflict and non-conflict situations. It will continue to recruit persons with the required expertise and experience in this field. | ||||
| 15. | Staff training on an ongoing basis is an essential component towards ensuring the effective investigation and prosecution of sexual and gender-based crimes. The Office will endeavour to ensure that team members and all other relevant staff members, including interpreters, have the necessary competencies to perform their functions effectively in relation to sexual and gender-based crimes. | ||||
| 16. | The Office will constantly monitor its practices with regard to the investigation and prosecution of sexual and gender-based crimes. It will utilise its standardised and institutionalised lessons-learned process to identify, document, and implement best practice with regard to sexual and gender-based crimes. This will promote learning and the preservation of institutional knowledge gained from experience. This policy, together with the Operations Manual and other internal rules and procedures, will be regularly reviewed in order to incorporate best practice and other relevant developments, including jurisprudence. | ||||
| 17. | The Office will monitor the implementation of this policy. | ||||
Note
Reprinted with the kind permission of the International Criminal Court.
Ms Fatou Bensouda, Prosecutor, International Criminal Court, under whose leadership the prosecution of sexual and gender-based crimes was elevated to a key strategic goal, June 2014
