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International Criminal Court: Policy Paper on Sexual and Gender-Based Crime

(June 13, 2014) On June 6, 2014, Fatou Bensouda, the Chief Prosecutor of the International Criminal Court (ICC), issued a Policy Paper on Sexual and Gender-Based Crimes. According to an ICC press release, the new document “will guide the Office of the Prosecutor … in fighting against impunity for sexual and gender-based crimes, and promote transparency and clarity, as well as predictability in the application of the legal framework of the Rome Statute to such crimes.” (Press Release, ICC, The Prosecutor of the International Criminal Court, Fatou Bensouda, Publishes Comprehensive Policy Paper on Sexual and Gender-Based Crimes, ICCwebsite (June 5, 2014).)

The policy is expected to help ensure the effective investigation and prosecution of these crimes and to enhance access to justice for its victims via the ICC. (Id.) According to the Chief Prosecutor, “[i]t is hoped that the Policy will also serve as a guide to national authorities in the exercise of their primary jurisdiction to hold perpetrators accountable for these crimes.” She added, “[t]he message to perpetrators and would-be perpetrators must be clear: sexual violence and gender-based crimes in conflict will neither be tolerated nor ignored at the ICC.” (Press Release, supra.)

The press release emphasizes that “[s]exual and gender-based crimes are among the gravest under the Rome Statute [which established the ICC] and investigating and prosecuting such crimes is a key priority for the Office [of the Prosecutor].” (Id.) As the Policy Paper states,

The Statute is the first international criminal law instrument that explicitly recognises rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, and other forms of sexual violence as distinct types of war crimes. … It also expands the list of sexual and gender-based crimes constituting crimes against humanity to include not only rape, but also other forms of sexual violence, as well as persecution on the basis of gender. It is the first international instrument expressly to include … sexual and gender-based crimes as underlying acts of crimes against humanity or war crimes committed during international and non-international armed conflicts. In addition, the Statute authorises the Court to exercise jurisdiction over sexual and gender-based crimes if they constitute [such underlying acts or] acts of genocide … . (Policy Paper on Sexual and Gender-Based Crimes (June 2014), ¶ 25, ICC website.)

The Policy Paper further points out the importance of the Statute’s article 21(3), because it mandates the Statute’s application and interpretation being consistent “with internationally recognised human rights, and without any adverse distinction founded, inter alia, on gender or ‘other status.’ The Office will take into account the evolution of internationally recognised human rights.” (Id. ¶ 26.)

Under the Rome Statute, the Court has jurisdiction over crimes against humanity under article 7 and war crimes under article 8. (The Rome Statute of the International Criminal Court (July 17, 1998, in force on July 1, 2002), 2817 U.N.T.S. 38544.) The Statute further provides that among the duties of the ICC prosecutor are to “take appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court, and in doing so, … take into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children … .” (Id. art. 54(1)(b).) The Office of the Prosecutor will also “appoint advisers with legal expertise on specific issues, including, but not limited to, sexual and gender violence and violence against children.” (Id. art. 42(9).)

Issuance of the Policy Paper followed a process of extensive consultation carried out with the staff of the Office of the Prosecutor, including the Prosecutor’s Special Gender Advisor, and with ICC State Parties, international organizations, civil society groups, and academic and individual experts. (Press Release, supra.)