The Gender Justice Shadow of Complementarity: Lessons from the International Criminal Court’s preliminary examinations in Guinea and Colombia

In early July 2013, Human Rights Watch reported that one of the alleged perpetrators of the 2009 Guinea stadium massacre, Lieutenant-Colonel Claude Pivi, has been charged with murder, rape and destruction of property. This was an important first step towards holding one of primary suspects of this atrocity to account. It was also a significant moment for the International Criminal Court (ICC), which in 2009 had commenced a preliminary examination –under the Rome Statute’s complementarity provisions – into this massacre, and the Guinean authorities efforts to bring to justice the perpetrators. However, as we point out in a forthcoming article in the International Journal of Transitional Justice [forthcoming: Volume 7 (3)] the Guinean case also highlights the existence of a ‘gender justice shadow’ in relation to the ICC’s complementarity processes, especially in relation to the investigation and prosecution of crimes of sexual violence against women.

Our article considers the ICC’s Office of the Prosecutor (OTP) preliminary examinations of both the Guinean massacre and the Colombian conflict and argues that, on an analysis of  publically available information, the OTP has applied a low threshold when assessing crimes of sexual violence against women against the three core criteria – state action, willingness and ability – of the Rome Statute’s complementarity test, effectively leaving intact impunity for these crimes.

Our argument here mirrors the work of Kevin Heller, who has shown that while the Rome Statute establishes the highest standards of due process for cases before the ICC, its complementarity provisions do not extend due process rights in national jurisdictions. Similarly, we suggest that there is a ‘gender justice shadow’ side to complementarity: the Rome Statute provides the most developed articulation of gender justice of any instrument of international criminal law, yet complementarity does little to extend these measures to the domestic level.

Members of the Women’s Caucus for Gender Justice, who were so influential in shaping the ground-breaking gender justice aspects of the Rome Statue, were the first to highlight this gender justice shadow. During the negotiations process in the late 1990s, the Caucus cautioned that unless the Rome Statute recognised in its complementarity tests of action, willingness and inability the gender biased features of national penal codes, especially weak substantive and procedural laws to address sexual violence against women, it ‘could result in impunity for crimes of sexual and gender violence’ (Women’s Caucus for Gender Justice, ‘Gender Justice and the ICC’, paper presented at the Rome Conference, Italy, 15 June – 17 July 1998, 24; document with the authors). This argument has since reiterated by other commentators and academics (see Women’s Initiative for Gender Justice, Susana SáCouto and Katherine Clearly, and Amrita Kapur).

Our analysis shows that the OTP’s preliminary conclusions about complementarity in Guinea and Colombia have failed to take adequate account of crimes of sexual violence against women. There are questions as to whether the domestic proceedings have addressed either the same persons or the same crimes, particularly where sexual violence is involved. In both Guinea and Colombia, some of the sexual violence crimes documented by the OTP are not included in the domestic penal codes, and a lack of transparency makes it difficult to assess which individuals the OTP is investigating, and whether they have been charged for sexual violence at the national level.

Similarly, it appears that in the OTP’s application of the willingness and ability criteria in these two sites, gender biases in domestic law have been overlooked. Based on the available documentation, it seems there has been minimal, if any, attention given to impartiality in proceedings for victims of sexual and gender-based crimes or the limitations in local laws to allow for investigation and prosecution of a full range of sexual and gender-based crimes.

These problems of apparent non-recognition of gender justice issues in Guinea and Colombia are a legacy of the failure of States to include the Women’s Caucus for Gender Justice’s suggestions to expressly integrate gender justice concerns in the complementarity provisions. The prediction made in the 1990s by the Women’s Caucus appears to have become a reality at least in Guinea and Colombia: ongoing impunity for many perpetrators of sexual violence, and little justice for the victims of these crimes. This is, we argue, the gender justice shadow of complementarity.

The positive side of the story is that the ICC’s second Prosecutor, Fatou Bensouda, has professed a strong commitment to gender justice; building around her a team of advisors including Brigid Inder, Patricia Viseur Sellers and Diane Amann, who have high-level gender justice expertise. The creation of an overarching OTP gender policy, slated for release in 2013, will provide the chance for the Office to draw on lessons from its first decade in operation and establish new procedures which embed core gender justice concerns in ongoing and future complementarity assessments. At minimum is hoped that the OTP will provide clear criteria for evaluating action, willingness and ability at the preliminary examination stage in ways that capture existing gender biases in the law. In implementing this policy it will be important that the OTP, and the other arms of the Court, are as transparent as they can possibly be (within a highly sensitive legal context) about their recognition of gender biases when undertaking preliminary examinations and throughout the complementarity process. It is only when such information is available that a complete assessment can be made of the impact of the gender justice shadow of complementarity.

— Co-authored with Louise Chappell and Rosemary Grey.

Colombia: After the War- What Future for Women?

As the peace process with FARC inches along in Colombia, a question remains unasked: after the war, what will the future look like for women?

This question was the focal point for a series of events at Universidad de Los Andes in Bogotá May 2 and 3, bringing together women grassroots leaders, Colombian cause lawyers, government officials and international scholars to imagine a Colombia after the war. From the viewpoint of transitional Justice (Ruth Rubio); social suffering (Lucie White) and suffering after war (Veena Das), and the Colombian conflict (Angélika Rettberg, Camila De Gamboa, Donny Meertens and María E. Wills).

Panelists were invited to imagine a future for women after the war, based on the premise that as academics committed to social justice, we have a high stake in ensuring women’s transformative and redistributive concerns are part of the post-conflict. And, more poignantly, that should the process fail to achieve peace for women, this be a failure of the will, not of the imagination.

Generally the experts were cautious. In the case of Colombia, even imagining an end to war is difficult. While a peace agreement between the government and the FARC guerrilla may be signed this year, such agreement will not mean an end to violence. The current war is only part of a long-lasting conflict that has torn apart several generations, and that today increasingly finds its expressions in illegal natural resource extraction practices, shady business deals, and the ubiquitous, armed presence of organized crime.

While the country is developing fast,  inequality levels remain among the highest in the world, and  murders and death threats  against social movement leaders, trade unionists, human rights defenders and other visible community leaders and intellectuals remain part and parcel of Colombian social and political life.

At the same time, Colombia is a constitutional democracy with a strong administrative state, and far-reaching legal protection mechanisms for vulnerable groups, mechanisms that are used actively by a plethora of grassroots organizations in their struggle for social change. It is also the scene of rapidly changing institutional mechanisms for both responding to the ongoing humanitarian crisis, and, if the government has its way, to ensure a transition to peace.

In 2011 the government and Congress adopted land-breaking legislation (Law 1448 of 2011) to repair victims of armed conflict, which, like the many Constitutional Court decisions which address the matter, take women’s concerns seriously. This legal framework replaced that of internal displacement as the official response to the humanitarian crisis, transforming the category of internally displaced people to a broad category of “victims” of different crimes by different perpetrators  under the 2011 victims law, all entitled to reparations in the truth/justice/reparations mantra of transitional justice.

Yet, the new system has met significant difficulties in implementation. These arise in part from the usual problems with setting up a new national agency with insufficient resources to deal with an enormous vulnerable population. They also arise from the persistent reprisals by illegal armed actors against potential beneficiaries and, increasingly, against officials of the victim’s relief programs.

In this context, hope is hard to muster, even in the protected hallways of the elite Universidad de los Andes. And while there is a substantive amount of civil society activism on feminist issues, most of this activism focus on making sexual violence, and its victims, visible. Few activists, if any, are asking difficult questions about the transformations (including redistribution of resources) that a peace process, with its ensuing transition, might bring for women, especially for the rural women who have born the enormous weight of war. Hence, we must keep asking the question: After the war; what future for these women?

Julieta Lemaitre and Kristin Bergtora Sandvik

Launch of report series on safe shelters for refugees and IDPs fleeing SGBV

I had the great pleasure of launching our research series on safe shelter from sexual and gender-based violence in forced displacement contexts today at the UNHCR NGO Consultation in Geneva.  This was the study I introduced in an IntLawGrrls post last June, as we were starting our data analysis.

Safe Haven: Sheltering Displaced Persons from Sexual and Gender-Based Violence, Comparative Report.

Safe Haven: Sheltering Displaced Persons from Sexual and Gender-Based Violence, Comparative Report.

IntLawGrrls might recall that the study was aimed at filling the gap between limited international guidance on safe shelter provision in forced displacement contexts and knowledge about what is and is not working on the ground. We had 3 main objectives:

  1. Identify and describe shelter models available to refugees, the internally displaced, and other migrants fleeing sexual and gender-based violence.
  2. Identify  challenges experienced by staff and residents in these settings and document strategies used to respond to these challenges.
  3. Explore protection needs and options for particularly marginalized victim groups, such as male survivors, sexual minorities, and people with disabilities.

To learn more about the above, we interviewed safe shelter residents, safe shelter staff, and key informants in Colombia, Haiti, Kenya, and Thailand in the first half of 2012. The case-study research culminated in five reports: four country reports and one comparative report. All are available here on the Human Rights Center website.

One of our key findings was the great diversity of existing safe shelter mechanisms – even beyond traditional safe houses. Other data concerned the tremendous work being done under shockingly constrained resources. Of course, we also documented recurrent challenges related to resource limitations, security and emotional support needs of shelter STAFF as well as residents, limited transition options,  the need for community buy-in, and the lack of coordination among shelter programs – especially between mainstream safe shelters and those serving refugees or IDPs.

Safe shelter options come in traditional and nontraditional forms.

Safe shelter options come in traditional and nontraditional forms.

In addition, we noted some of the ethical and political challenges that can arise in the provision of focused protection of a few, while in the midst of general deprivation.

Finally, we marked critical protection gaps – particularly around LGBT persons, male survivors, and persons with serious health conditions.

Protection solutions must be context-specific. For this reason, our recommendations are circumspect; we tried not to overstep the bounds of our data.  Hopefully, our exploratory study in four very distinct countries will nonetheless shed light on what is and what is not working well in those contexts, and what strategies might be helpful in similar circumstances.

So far, the heads of UNHCR’s Policy Development and Evaluation Service and the Division of International Protection have welcomed the research and say it will directly impact their thinking and programming on protection from sexual and gender-based violence. We hope so. We also hope for similar openness as we bring our research back to providers and policymakers in each case study country this month – we’ll then share their grassroots-level updates, feedback, and additional recommendations with UNHCR headquarters again in July when we’re done.

‘Nuff said

gay flagTo be sure, there is not one single strategy or answer that can resolve all these questions, as is always the case when people are fighting for their rights. What is clear, though, is that serious thoughtful debate may be more likely in the courtroom than in the congress, particularly where religion maintains a stronghold in legislative debate. In those cases, minority groups must rely on litigation to protect them against the tyranny of the majority — fitting, since courts were designed to carry out just that role in public life.

— Prof. Lina M. Cespedez Baez of the faculty of law of the Universidad del Rosario in Bogota, Colombia, currently a Fulbright scholar pursuing her SJD (under my supervision) at Temple Law School. This quote comes from Lina’s article published this week in Foreign Affairs magazine, Gay Marriage Goes to Court in Colombia, comparing marriage equality campaigns, legal and extralegal, in the United States and Colombia.