The Gender Provisions of the Rome Statute as a Tool to Promote Women’s Rights and Women’s Leadership in International Justice

Jelena Pia-Comella
Deputy Executive Director, World Federalist Movement – Institute for Global Policy

As we enter the year commemorating the 20th anniversary of the Rome Statute, it reminds us of the paramount impact that the Rome Statute System has on women’s rights and women’s leadership in international justice. As I will elaborate further in this article, the Rome Statute has created a new standard for international justice when it comes to investigate and prosecute sexual and genderbased violence as mass atrocity crimes. It also ensures gender balance at the International Criminal Court: recently last year, the five out of the six newly elected judges were female judges.

As March is the month celebrating women’s international day, let us remember victims and survivors of sexual and gender-based violence in conflicts. Let us call on the need for universal ratification and implementation of the Rome Statute and in particular its gender provisions. First and foremost because the Rome Statute (RS) is so far the only international treaty that criminalizes and explicitly defines sexual and gender-based violence as crimes against humanity (article 7g) beyond the act of rape; as war crimes (article 8.2xxii) and to a certain extent as genocide (article 6d). To this regard, the Rome Statute is not only ensuring that women who are victims of the gravest crimes under international law have access to justice, but also sets new standards for national legal systems. I think that the Rome Statute offers three main improvements in the fight against impunity for sexual and gender-based violence and therefore promoting women’s rights overall:

• firstly by explicitly “defining” and criminalizing sexual and gender-based violence;
• secondly by ensuring victims’ protection, participation and reparations;
• thirdly by recognizing sexual and genderbased violence as war crimes and crimes against humanity, not as acts collateral to war.

Indeed, the Geneva Conventions did not mention rape or other sexual and gender-based violence; they are mentioned as “violations to human dignity” and this has proven to be a huge gap in addressing the causes of sexual and gender-based violence and therefore in ending impunity for these crimes, especially in conflict and post-conflict situations, where the most vulnerable, particularly women and girls, are left with little or no protection. With no proper definition there cannot be proper action. It is in that sense, the Rome Statute is progressive, innovative as it recognizes sexual and gender-based violence in all its forms. More specifically, the Rome Statute recognizes rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization as crimes against humanity and war crimes.

The second improvement is in the specific provisions of the Rome Statute to ensure that witnesses may testify in closed hearings or through special means to protect their privacy; the confidentiality of victims will be protected throughout the proceedings and in published court documents; the Victims and Witnesses Unit of the International Criminal Court include experts on trauma related to sexual and gender-based violence and psycho-social care. Also, the Court cannot admit evidence of a victim or witness’s prior or subsequent sexual conduct, or require corroboration of testimony concerning sexual violence, and requires special procedures for presenting evidence of consent to acts of sexual violence. Through the groundbreaking provisions of victims’ participation in proceedings, well known in civil law jurisdictions but new to the international criminal sphere, women’s voices can be heard in the courtroom, voices often overlooked in prosecutions.

The third advancement from the Rome Statute is that it recognizes sexual and gender-based violence as mass atrocities – mainly as war crimes and crimes against humanity, and not as a collateral act of war. This definitely sets a new tone in the fight of impunity for these crimes and reinforces the Women Peace and Security agenda. As we just entered the 20th anniversary of the adoption of this landmark treaty, we would like to encourage all members of WFM-IGP to join our efforts in:

• Coordinating and reinforcing the support towards the universal ratification and implementation of the Rome Statute;
• Raising awareness and training on the gender provisions of the Rome Statute, as well as the United Nations Security Council’s resolutions on Women, Peace and Security, in particular resolutions 1820 and 1889;
• Coordinating and reinforcing the support towards universal ratification and implementation of the Convention on the elimination of all forms of discrimination against women (CEDAW);
• Carrying-out an awareness-raising campaign on gender justice, and recognizing that sexual and gender-based violence is not a collateral act of war but crimes of war;
• Strengthening the working methods of the UN Security Council (UNSC) so to be more consistent and coherent on addressing and preventing mass atrocities;
• Mainstreaming the 1325 and RtoP agendas throughout all the decisions and resolutions of the UNSC.