ASP21: Myanmar: Exploring Options for Justice

21st SESSION OF THE ASSEMBLY OF STATES PARTIES

6 December 2022

Name of the Event: Myanmar: Exploring Options for Justice

Report by: Sindija Beta, Legal Team, PILPG

Highlights: 

• The Burmese Rohingya Organisation UK is bringing 6 Rohingya women from Bangladesh to Buenos Aires to allow them to testify at the universal jurisdiction case in Argentina.

• The ICJ case on the Rohingya is important because it is one of the few genocide cases initiated under the Genocide Convention, it is so important for the Rohingya, and the analysis of the interpretation of genocide will have an impact on future cases.

• Since the 2021 coup in Myanmar, the IIMM has begun collecting and analyzing evidence from violations committed in Myanmar, including those against other ethnicities and groups beyond Rohingya. They have found clear evidence of crimes against humanity.

• The atrocities committed in Myanmar are a result of systematic and long-term impunity prevalent within Myanmar and among the international community’s attitude to the situation.

Speakers:

• Moderator: Carmen Cheung Ka-Man, Executive Director, Center for Justice and Accountability

• Tun Khin, President, Burmese Rohingya Organisation UK

• Priya Pillai, Head, Asia Justice Coalition Secretariat

• Akila Radhakrishnan, President, Global Justice Center

• Nicholas Koumjian, Head of the Independent Investigative Mechanism for Myanmar

• Karim Khan, Prosecutor, International Criminal Court

• Chantal Daniels, International Cooperation Advisor, Office of the Prosecutor, International Criminal Court

Summary of the Event: 

This year marks the five-year anniversary of the Rohingya crisis and almost 2 years since the coup.  Violence against protesters in Myanmar continues to take place, yet there is hope for accountability, particularly, due to the establishment of institutions for addressing the crisis and the positive progress made on some of the accountability cases launched before justice mechanisms.

Karim Khan opened the event by saying that what the world has witnessed in Myanmar is a scandal.  We see terrible suffering among communities, however, the ICC only has jurisdiction over part of the crimes.  Bangladesh has been the trigger to the jurisdiction of the Court and has given refuge to millions of Rohingya.  He emphasized that the cooperation with Bangladesh has been meaningful and noted that, even during COVID-19, the team of the Office of the Prosecutor visited the camps to conduct interviews.  Karim Khan went to Cox’s Bazar in February and had a positive engagement with senior officials from Bangladesh, and the Office of the Prosecutor currently has premises in Cox’s Bazar to be able to conduct interviews.  Nonetheless, the ICC is not the only institution working in the field and should not be.  He highlighted the Independent Investigative Mechanism for Myanmar (IIMM) and pointed out that the IIMM is required to cooperate with the ICC and ICJ, which the ICC is effectively returning by ensuring transparency between organizations.  Karim Khan advocates that different stakeholders should sit down at least once a year, including with different actors and vulnerable groups, to talk about how to collectively, as the international community, coordinate to reach better results.  

Prosecutor Khan then turned to the overdocumentation as a major concern of the Office. .  There is a need for an office of coordination for humanitarian assistance to coordinate how best to support conflict situations.  He mentioned Ukraine and the establishment of a Dialogue Advisory Group to cooperate with different actors as a positive example of such cooperation.  The ICC is trying to build an architecture of international intelligence to most effectively ingest information, identify patterns, and find reliable evidence.  Another pertinent question he raised was working together with the people on the ground - landmark decisions of the Special Court for Sierra Leone were successful because the Sierra Leone Court was close to the community.  He highlighted the importance of the ICC being close to the community and that the establishment of a local facility with contribute to that.  Moreover, he discussed the need to enhance the idea that you do not need to be a State Party to take action on international justice and accountability, particularly referring to the involvement of ASEAN.   

The first panelist for the discussion was Tun Khin who spoke about the complementarity of the case in Argentina and the ICC.  The Argentine case has tremendous challenges related to language and culture barriers, as well as the distance between Argentina and Myanmar.   He underlined that humanity needs to prosecute perpetrators and establish justice for the victims no matter what.  At first, Argentina's court was hesitant to move forward due to a number of reasons, nonetheless, on appeal, the Court was satisfied with the arguments put forward by the Burma Rohingya Organisation.  The Argentine hesitancy was due to the fact that the ICC was looking at the crimes too, however, they approached the ICC and explained the case, which led to progress in Argentina.  In December 2021, the Court launched an investigation in Argentina.  This was an important movement for addressing impunity for the Rohingya and showed the strength and hope for a better future.  Tun Khin noted that his organization requested the victims to be able to take the floor during the proceedings - it is important for the victims to address the Court directly.  As such, they decided to bring women from Bangladesh to Argentina to allow them to see the face of justice, which will be an extraordinary event.  Because of this event, Mr. Khin pointed out, a strong message will be passed to the Myanmar military that international justice sees no limits and continues despite frontiers.  For Argentina, on the other hand, it will be a unique opportunity to be in direct contact with victims of the Rohingya genocide.  He said that the women are very excited about traveling to Buenos Aires on their journey for justice.  Expecting that, in the near future, the Rohingya group will be in Argentina for this purpose.  

Tun Khin also noted that his organization pushed for IIMM to engage with the Argentinian judicial authorities and requested to share evidence with the Argentine Court.  This cooperation has made great progress and they expect it to continue and deepen.  Moreover, the Argentine Court asked the US government to share all available information with Argentina on the genocide, especially, the information that led the US Government to determine that a genocide had taken place in Myanmar.  The US Secretary of State responded to the request by visiting Argentina to meet about this topic.  Burmese Rohingya Organisation UK hopes to allow more victims to give their testimonies in any form possible and Mr. Khin thanked Bangladesh for being supportive of bringing 6 women to Buenos Aires.  

Then, Priya Pillai spoke about the Rohingya case at the International Court of Justice (ICJ) and where it is headed.  She explained the proceedings before the ICJ and the legal development for the situation in the fall of 2019.  She highlighted that the provisional measures were issued unanimously and even the judge acting on behalf of Mynamar agreed with the measures, including requiring Myanmar to report to the ICJ on compliance with the Genocide Convention.  Now, we are at a critical juncture where there is a green light to move to the merits stage - 24 of April 2023 for Myanmar to submit a counter-memorial.  Moreover, the Maldives, the UK, Canada, and the Netherlands decided to intervene in support of the Gambia.  Canada and the Netherlands, particularly, decided to intervene on sexual violations.  Ms. Pillai noted that it is an important case that we should be following because it is one of the few genocide cases initiated under the Convention, because it is so important for the Rohingya, and because of the analysis it will have of the interpretation of genocide. 

Next, Nicholas Koumjian discussed the perspectives of the IIMM in supporting accountability efforts.  Myanmar could serve as a good place to study a model of the options and possibilities of international justice and also the limitations of international justice and weaknesses.  Nonetheless, he said that complexities of different processes are prevalent.  Firstly, the ICC has limited jurisdiction due to a lack of UNSC referrals and Myanmar not being a party.  Secondly, the ICJ due to the need to accurately interpret the obligation to prevent and punish genocide and due to the question of how to enforce its decision.  This is extreme complexity and very important because it affects other places around the world.  Thirdly, the pure universal jurisdiction case in Argentina is complex because of the lack of ties to Myanmar.  

Mr. Koumjian then turned to the mandate of the IIMM, which is to collect evidence.  The mandate covers the entire territory of Myanmar and covers all crimes, including those committed since 2011 in the border areas of Myanmar and the long-standing conflicts.  Other minorities in Myanmar, not Rohingya, have also suffered from the violations but do not have a case for them before justice mechanisms.  And then, with the 2021 coup, the situation for the IIMM changed because the IIMM started to monitor the current situation closely and found clear evidence of crimes against humanity.  Every week there is a new major instance and massacre, for which they have collected evidence, Mr. Koumjian emphasized.  However, there is no forum where to share it.  The IIMM has been actively cooperating with the ICC to make sure they do not step on each other’s toes.  He underlined that the IIMM cannot arrest or charge anyone so they cannot do anything about the violations committed in the framework of the coup, which is why cooperation with the ICC is important.  Furthermore, they do not have the authority to compel evidence - all data they have has been shared voluntarily and with the source’s consent to share the information.  They also seek consent from the sources about sharing with other processes.  

Lastly, Akila Radhakrishnan spoke about the accountability gaps in the Myanmar situation and what are the options for addressing them.  Rohingya are breaking a persistent cycle of impunity in Myanmar for the past 60 years.  She emphasized that there is a need to address the multiplicity of crimes occurring in the country noting the implicit and explicit structural impunity that has characterized Myanmar.  She provided an overview of the history of Myanmar and how the military has always had a structural role in the government.  Ms. Radhakrishnan discussed how ethnic actors and women groups have been calling for action for a long time at the UN and elsewhere, yet with no results.  She argued that Myanmar's impunity is structural and is at both domestic and international levels likewise saying that impunity is the rule, not the exception.  At the international level, she noted that there has never been a UN Security Council on Myanmar and that civil society calls have been ignored by the international community.  She argued that international political dynamics have shielded the perpetrators from real consequences despite the existence of crimes against humanity, genocide, and war crimes.  Ms. Rahakrishnan called for more to be done to ensure that all those harmed by the military have pathways to justice and the need to open cases beyond the Rohingya.  

During the question and answer session, the audience raised issues such as the reduced appetite for addressing the Myanmar situation and what practical steps to take now, the failure of the international community to address the problems, which have led to gross violations of human rights, as well as options for meaningfully engaging the local communities.  In response, Ms. Pillai referred to the ASEAN states as examples of the limited interest in the situation now and how China is a major obstacle to accountability.  Mr. Khin referred to the horrendous circumstances in which the Rohingya live in Bangladesh and the importance of opening more universal jurisdiction cases for Myanmar.  Speaking on behalf of the ICC, ms. Daniels pointed out that there is a dire need to raise awareness among the communities about what the international mechanisms are and what they can offer.  Mr. Koumjian then discussed legal versus political steps that are required to address the situation calling for more political action to address the crisis, however, noting the necessity to separate judicial authorities from political discussions.  Ms. Radhakrishnan then brought up how the international community should listen to the voices of the victims and what are their priorities.  

ASP21 Side Event: A sustainable model for responding to conflict-related sexual violence in Ukraine

     21st SESSION OF THE ASSEMBLY OF STATES PARTIES

7 December 2022

Name of the Event: A sustainable model for responding to conflict-related sexual violence in Ukraine - Presenting the Ukrainian Prosecutor General’s conflict-related sexual violence strategy and discussing its transformative potential to enhance access to justice (organized by Australia, Canada, the Netherlands, Poland, the United Kingdom, International Federation for Human Rights, Global Rights Compliance and Women’s Initiatives for Gender Justice)

Report by: Kateryna Kyrychenko, Program Manager, PILPG

Highlights: 

• Victim-centered practices need to be in the center of all investigations and prosecutions of sexual violence cases.

• Reparations and compensation for the victims, access to services, PSS, and security guarantees are the main needs of the survivors of conflict-related sexual violence.

• Discriminatory practices that prevent access to justice for victims, wide-spread patriarchal stereotypes, and biases that create grounds for sexual violence and stigma against the victims are the main issues that need to be tackled to prevent and avoid sexual violence in conflict in Ukraine and in other contexts.

• Detailed info on the Side Event and the newly adopted Ukrainian “Victim and Witness-Oriented Stretegy for the prosecution of CRSV crimes” can be found here: https://4genderjustice.org/crsv-in-Ukraine

Speakers: 

• Iryna Dovgan, Survivor activist and Coordinator of SEMA Ukraine – Network of Victims and Survivors of Wartime Sexual Violence

• Iryna Didenko, Head of Specialized CRSV Unit, War Crimes Department of the Ukrainian Office of the Prosecutor General

• Hrystyna Kit, Chairwoman of the Association of Women’s Lawyers of Ukraine “JurFem”

• Kateryna Cherepakha, President of CSO “La Strada-Ukraine”

• Anna Mykytenko, Country Manager – Ukraine, Global Rights Compliance

• Carolyn Edgerton, Legal consultant and mentor, former ICTY Trial Attorney

• Kim Thuy Seelinger, Special Adviser to the ICC Prosecutor on Sexual Violence in Conflict

Summary of the Event: 

Ukraine is now at a stage where it needs to combat biases, discrimination, and stereotypes underpinning sexual violence in all forms.  Prosecutor General of Ukraine initiated the development of the framework for dealing with sexual violence - “Victim and Witness-Oriented Strategy for the prosecution of CRSV crimes”, that was recently adopted with the support of international partners.

Iryna Dovgan (Survivor activist and Coordinator of SEMA Ukraine – Network of Victims and Survivors of Wartime Sexual Violence), in her pre-recorded opening remarks, noted that due to the full-scale Russian invasion of Ukraine in February 2022, there are augmenting numbers of victims of sexual violence reported.  National law enforcement bodies’ response and lack of compensations system for victims in Ukraine were mentioned as the main pertaining issues.

Iryna Didenko (Head of Specialized CRSV Unit, War Crimes Department of the Ukrainian Office of the Prosecutor General) spoke about timely  documentation of all war crimes committed by Russia in Ukraine as an extremely crucial issue.  The law enforcement and prosecution system of Ukraine was not ready for such a large-scale challenge, which has caused grave investigation and prosecution issues (such as prevention of re-traumatization of victims) during the first months of the invasion. Prosecutor General of Ukraine Andriy Kostin has introduced the next steps that have helped mitigate those issues: all investigations of sexual violence-related cases were paused to build capacities of the prosecutors and investigators; new specialized units were created; new strategic approaches were developed with international support (such as “Victim and Witness-Oriented Strategy for the prosecution of CRSV crimes”).  As of now, 114 cases of confirmed sexual violence cases, committed by Russian combatants in Ukraine, were registered since February 2022 (this number includes only victims that agreed to undergo all necessary procedures, the actual number of victims is much higher); with victims being in the age range of 4-82 years, of different genders.

Hrystyna Kit (Chairwoman of the Association of Women’s Lawyers of Ukraine “JurFem”), during her intervention, mentioned the following challenges: communication with victims of SGBV, ensuring victims are aware of available services and rights, coordination and cooperation of the judicial branch, law enforcement sector and social protection services, identification of all forms of SGBV (as of now there are no national legal provisions on different kinds of sexual violence), decentralization, strengthening of regional-level availability of services available for survivors, and capacity-building of service-providers, provision of non-monetary compensations for the survivors of SGBV since 2014 (guarantees of non-repeating, as a main desired guarantee mentioned by victims themselves).  On the other hand, as mentioned by Ms Kit, non-conflict related sexual violence should also not be disregarded by the Ukrainian Government (one step forward in this direction that has already been done by Ukraine is the ratification of the Istanbul Convention in June 2022, which has entered into force since 1 October 2022).

Kateryna Cherepakha (President of CSO “La Strada-Ukraine”, which works with victims of human trafficking and sexual violence) made a point that the wide-spread understanding of sexual violence is too narrow and is usually limited only to rape, which excludes other forms of sexual violence from the discourse and limits rights of the victims.  Survivors tend to prioritize requests for assistance rather than reporting about the crimes that they suffered.  Safety of survivors is crucial for Ukraine as a state, which is in active war.

Carolyn Edgerton (Legal consultant and mentor, former ICTY Trial Attorney) discussed the areas that require improvement when looking at sexual violence in Ukraine.  She advised that we need to tackle the certain discriminatory procedural practices still pertaining in Ukraine (i.e. the requirement of corroboration of victims before taking to court).  Ms Edgerton acknowledged transformatory potential of the recently adopted “Victim and Witness-Oriented Strategy for the prosecution of CRSV crimes” for gender-based violence.

ASP21 Side Event: Global crisis and the potential of the ICC: relevance of ecocide as the fifth crime

     21st SESSION OF THE ASSEMBLY OF STATES PARTIES

6 December 2022

Name of the Event: Global crisis and the potential of the ICC: relevance of ecocide as the fifth crime (organized by Vanuatu, Parliamentarians for Global Action (PGA) and Stop Ecocide Foundation)

Report by: Kateryna Kyrychenko, Program Manager, and Henry Smith, Research Associate, PILPG

Speakers: 

• Moderator: HRH Princess Esmeralda of Belgium

• Mrs. Elisabeth van Fliet, Honorary Consul of Vanuatu in the Netherlands 

• Professor Philippe Sands KC, University College of London

• Professor Chile Eboe-Osuji, former ICC president

• Professor Darryl Robinson, Queens University Canada

• Jojo Mehta, Chair of the Stop Ecocide Foundation

• Josh Oxby, UN Youth Advisor

Summary of the Event: 

The moderator of the event, HRH Princess Esmeralda of Belgium, opened the session noting that the Rome Statute was established with the intention to address the most serious crimes that affected the international community.  Damage to the environment usually is linked to conflict, however, it harms all international communities as a whole, national communities, especially minorities.  In the context of the ecological crisis, the destruction of environments constitutes these types of crimes as they affect local communities across the globe, particularly indigenous peoples and other minorities.  Therefore, the Princess noted that it is very much relevant to include ecocide as the fifth crime within the scope of the Rome Statute.  She mentioned that recognition of the importance of this matter is growing among State Parties.  She laid out that the speakers would address the global progress of the ecocide agenda, the importance of the recognition of ecocide as an international crime within the ICC framework, and the potential of this recognition for the fight against the global environmental crisis.

The Honorary Consul of Vanuatu in NL, Mrs. Elisabeth van Fliet, reiterated support for the ICC and its mission, and highlighted the ICC’s potential for fighting the environmental crisis.  As an island state, Vanuatu is losing land to rising sea levels, witnessing the death of coral reefs, and experiencing deadly cyclones and extreme weather conditions.  For Vanuatu, as for many other vulnerable states, the ecological crisis is already an existential one.  For these reasons Vanuatu is committed to bringing the matter before international courts and organizations.  Vanuatu was the first state to raise the issue of ecocide before the ASP in 2019 and advocated for its inclusion to the Rome Statute.  They are committed to raising the issue before the International Court of Justice and are asking the United Nations General Assembly to support a resolution that protects the rights of future generations, and a treaty proposal for the non-proliferation of fossil fuels. 

Professor Philippe Sands made a parallel between the attempts to define and codify ecocide with the efforts to do so with genocide, crimes against humanity, and aggression.  The international community came together after these terrible conflicts and created those crimes to protect humans from atrocities.  However, there is a gap left now in relation to the protection of the natural environment.  The existing legal framework is completely anthropocentric and does not deal with challenges to biodiversity, to the atmosphere, and the marine environment.  Sands pointed out that forging a definition of the crime of ecocide will provide a basis to move forward in that direction, but that it should be a broad definition that all states could agree on and that would benefit both developed and developing states.  Thus, the definition established is: “unlawful acts committed with the knowledge that they would cause severe, widespread, and long-standing damage to the environment.”  Sands highlighted that people should not be starry-eyed about the ability of international criminal law to solve all environmental problems, but that it will change consciousness and allow them to understand that the international community agrees that certain forms of damage to the environment are not acceptable.  He also noted that, while the crime of ecocide would not be applicable to corporate acts, corporate officials could still be held individually responsible.  Sands mentioned that the amendment of the Rome Statute is the preferred route, as the negotiations of draft conventions can take a long time.  He underlined that the international community is living in yet another moment of change, a new convention on crimes against humanity is being drafted, a crime of aggression tribunal is being proposed, and it is important to put the environment also at the center of these changes.  Sands concluded by acknowledging the special interest of the youth, who are energized by matters of environmental protection.

Professor Chile Eboe-Osuji, former ICC President, supported the idea and importance of the inclusion of ecocide (in a broad, non-anthropocentric sense) to the Rome Statute.  He emphasized that we need to look beyond the ‘cide’ in ecocide and it should be ANY unlawful destruction of the environment that is included in the definition.  Judge Eboe-Osuji advocated for the extension of the notion of ecocide to peaceful times (thus illegal destruction of the environment not only in wars would be covered by the new definition).

Josh Oxby, UN Youth Advisor, has made an intervention on behalf of youth, mentioning that a powerful tool in tackling climate change issues would be the acknowledgment of ecocide as one of the gravest international crimes.  There is huge urgency and injustice (as indigenous people, youth and women are always disproportionally most affected by climate change) when tackling the issue of climate change.

ASP21 Side Event: Prosecuting the Crime of Aggression to Defend the Rules-Based International Order

     21st SESSION OF THE ASSEMBLY OF STATES PARTIES

6 December 2022

Name of the Event: Prosecuting the Crime of Aggression to Defend the Rules-Based International Order (organized by Liechtenstein and Luxembourg)

Report by: Kateryna Kyrychenko, Program Manager, PILPG

Highlights: 

• Aggression is one of the key international crimes.  In the context of Ukraine, aggression (invasion of Ukraine’s territory by Russia in February 2022) is the main crime from where all the other occuring war crimes/alledged genocide stem. 

• The ICC does not have jurisdiction over the crime of aggression (especially over aggression committed in Ukraine as neither Ukraine nor Russia are parties to the Rome Statute).  The situation in Ukraine created conditions calling for a revision of the ICC system to ensure aggression of a sovereign country is duly punished in all situations.

• Due to the lack of ICC jurisdiction, an alternative should be found to find liability for Russian aggression in Ukraine.  An option would be the establishment of a Specialized Aggression Tribunal that would have jurisdiction only over situation in Ukraine.  There is an open discourse over the format of such a potential tribunal.

Speakers: 

• H.E. Mr. Christian Wenaweser, Ambassador of the Principality of Liechtenstein to the ICC

• Prof Oona A. Hathaway, the Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School, Professor of International Law and Area Studies at the Yale University MacMillan Center, Professor of the Yale University Department of Political Science, and Director of the Yale Law School Center for Global Legal Challenges

• Prof Jennifer Trahan, Clinical Professor at NYU's Center for Global Affairs

• Ms Kerli Veski, Director General of Legal Department, Estonian MFA

Summary of the Event: 

The crime of aggression did not use to be a prevalent crime in international community, however, the current situation in Ukraine has demonstrated the dire need to review the existing ICC system with regard to the crime of aggression.

During the event Ambassador Wenaweser noted that the world order is currently facing one of the most significant challenges since World War 2, highlighting that there is a major challenge on the global prohibition on the use of force.  Specifically, he pointed out that Russia's invasion of Ukraine, aided by Belarus, undermines the global world order.  He further added that aggression is a supreme international crime and it accumulates all international crimes as a whole: without aggression there would have been no war crimes, no genocide in Ukraine.  Russia’s invasion of Ukraine has put international legal order in danger. 

Furthermore, Ambassador Wenaweser spoke about the ICC jurisdiction for the crime.  The ICC does not have jurisdiction over non-state parties for the crime of aggression despite Ukraine’s declaration accepting the jurisdiction for other crimes.  He underlined that the jurisdiction of the Court over the crime of aggression for non-state parties should be added to the ICC jurisdiction along with other crimes.  Besides the ICC jurisdiction, he suggested that the UN Security Council response might be a way to punish the crime of aggression.

Moreover, during the event, the panelists discussed other challenges there will be for prosecuting the crime of aggression for Ukraine, such as the  issue of immunities of higher military and political leadership.  Member States to the Rome Statute are supportive of the ICC investigations in Ukraine and have made resources available for this purpose.  The ICC is expected to play central role in investigation and prosecution of crimes, over which it has jurisdiction.  According to the panelists, for prosecuting the crime of aggression, a specialized tribunal should be created.  Ambassador Wenaweser mentioned that it should be done on the national rather than the domestic level - both for symbolic (as world order as a whole is undermined by the aggression) and practical reasons (lack of capacities on the national level, ensuring impartiality and efficiency of decisions).  Ambassador Wenaweser shared his views that a new specialized tribunal, that might be created in future, must be narrowly focused on the crime of aggression alone and on perpetrators only in leadership positions.

Next, professor Jennifer Trahan presented her consideration on the model for such a tribunal for Ukraine: fully international tribunal, international judges only (to ensure impartiality and neutrality), no temporal limitation of the jurisdiction (so that the tribunal could prosecute aggression in Ukraine since 2014).  The process of establishment of such a tribunal, as suggested by Prof. Trahan is that Ukraine submits a letter to the UN Security Council and the UN General Assembly calling for the decision to establish the tribunal.  She noted that, at the UN General Assembly, a majority of the votes would be enough unlike at the UN Security Council.   Related issue flagged by Prof. Trahan is that only 44 states have ratified the Kampala amendments, which causes limitations for the ICC. 

After professor Trahan, Ms Kerli Veski discussed the Estonian position with regard to the Russian invasion.  Estonia understands the need to prosecute Russia’s crime of aggression well.  Crimes of the former Soviet Union were left unpunished and Russia (as a main successor of the Soviet Union) has continues the repression committed during the 20th century, which were left unpunished, feeling no guilt and impunity for the former crimes.  As such, the international community needs to end this impunity.   She added that gravity of the current situation requires immediate action and offered Estonian support for the Specialized Tribunal for Aggression.

ASP21 Side Event: Gender Diversity and the Rome Statute System

21st SESSION OF THE ASSEMBLY OF STATES PARTIES

6 December 2022

Name of the Event: SE: Gender Diversity and the Rome Statute System

Report by: Sindija Beta, Legal Team, PILPG

Highlights: 

• Gender diversity and gender equality need to be examined and discussed together. 

• The concept of gender is lacking a unified definition, which includes a comprehensive perspective of gender. 

• Gender-inclusive approaches increase the legitimacy of the Rome Statute system. 

Speakers:

• Chair: Evelyn A. Ankumah, Executive Director, Africa Legal Aid (AFLA); Coordinator, Gender Mentoring Training Programme for Judges 

• Judge Piotr Hofmanski, President of the International Criminal Court

• Judge Solomy Balungi Bossa, Appeals Chamber, International Criminal Court; Chairperson, Gender Mentoring Training Programme for Judges

• Judge Fatoumata Dembele Diarra, Former Judge and First Vice President, International Criminal Court

• Jennifer Naouri, Immediate Past President, International Criminal Court Bar Association (ICCBA)

• Alix Vuillemin, Advocacy Director, Women’s Initiatives for Gender Justice

• Julie Heckscher, Head of Mission, Australia Embassy, the Hague

Summary of the Event: 

During the event, the speakers reflected upon the term gender within the framework of the Rome Statute system.  The first speaker was Judge Hofmanski. He discussed gender equality and gender diversity together arguing that both concepts are inseparable from each other.  

Judge Hofmanski emphasized that gender matters in all aspects of society and that the law cannot be an exception.  Gender equality and diversity are crucial for ICC's legitimacy and impact on an international level.  He substantiated his point with five arguments.  First, gender-diverse workflows and an organization that respects people’s differences are more likely to have a healthy workforce where staff feel appreciated and can enjoy a professional life.  Second, women have different experiences and backgrounds from men and can have different perspectives drawing attention to matters that otherwise could be unnoticed.  Third, diversity increases external perceptions of fairness.  Fourth, diversity allows for more sensitivity to victims’ needs. Women make up a considerable proportion of victims under the Court’s jurisdiction, which means the Court needs to be able to address the special needs related to gender violence and discrimination.  Fifth, it is critical that the ICC shows adherence to values of gender equality. 

Judge Hofmanski further noted that the Rome Statute system cannot achieve equality by treating gender issues as women's only problem.  Individuals need to not only abide by the correct principles but also need to actively promote them within our spheres of influence.  He noted that to move forward, we must transform statements into policies and actions referring to the ICC-adopted strategy for gender equality and workplace culture, which will be launched on Thursday at an ASP side event.  Strategy is an ambitious document with timelines and commitments for implementing gender parity in the Rome Statute system. 

Towards the end of his speech, Judge Hofmanski highlighted that gender parity cannot be taken for granted and that gender diversity is a source of strength and richness for the International Criminal Court. 

Then, Judge Solomy Bossa spoke about international criminal laws through a gender lens.  Recalling that gender is an important part of international justice as demonstrated by articles 7(3) and 21, the inclusion of a gender definition is a recognition that gender plays an important role in shaping societal behavior, Judge Solomy Bossa argued.  Judges must be attentive to power relations and the different experiences of women and men and LGBTIQ+ persons.  Discrimination and persecution go hand in hand and it is the duty of judges to establish the truth to eradicate both violations of international rules.  Judge Solomy Bossa further noted that when gender is interpreted in the context of society, the reasons for targeting certain victims become clear.  She pointed out that gender must not lead to stigmatization or discrimination and that we need to get rid of masculine bias, which affects women negatively.  Judge Solomy Bossa emphasized that judges must erode gendered roles, which inflict gender discrimination and international justice must recognize the value of all genders and minorities. 

Further, Ms. Vuillemin spoke about the applicability of gender-related provisions of the Rome Statute to gender diversity.  She discussed how gender is often used as a euphemism for women, a word which historically was used to raise awareness about the lack of women's inclusion and the socially constructed differences between women and men.  The women's movement part of the Women’s Caucus for the Rome Statute system aimed at rebuffing the societal differences that led to a disparity in salaries and reporting on sexual abuse.  Nonetheless, much has changed since the early 1990s.  The ICC is now one of the many international and regional organizations that advocate for the inclusion of women.  Ms. Vuillemin noted that gender perspective is key to accomplishing true gender equality and that this must include all genders, not just male and female.  Individuals of any gender can be victims of sexual violence, including women, non-binaries, transgender, and other genders.  Furthermore, Ms. Vuillemin referred to how men that have suffered from sexual violence are often perceived as feminine, however, as emphasized by Ms. Vuillemin, equaling feminity with sexual violence is demeaning to women. 

She then turned to the lack of a single prevailing definition and understanding of what is gender.  Ms. Vuillemin mentioned the different policies and definitions that are attributed to gender by policy documents and organizations, such as the ICC gender mainstreaming policy, gender persecution policy, and the IIIM policy on gender.  She mentioned that there is a lot of work done in this field also by young researchers.  

Two other panelists provided speeches on the topic.  Judge Fatoumata Dembele Diarra spoke on interpreting crimes to ensure the protection of all gender identities and sexual orientations and Ms. Naouri discussed the principle of complementarity and gender diversity.

Lastly, Ms. Heckscher provided concluding remarks on the protection of gender diversity.  She spoke about how rendering justice through a gender lens plays an important part in international justice highlighting that victims need to be supported to ensure the crimes are prosecuted.  Ms. Heckscher referred to the fact that our practices need to be victim sensitive not only within the ICC but also in national jurisdictions. She said that there are many tools available to us and gender strategies for us to understand this field but most importantly we need to learn, listen, understand, and avoid our internal biases. 

During the question and answer component, a representative of the Office of the Prosecutor made comments about the recognition of the fact that we talk about sexual and gender-based crimes and violence, and sometimes they overlap.  She noted that we are evolving towards an explicit recognition of non-sexual forms of gender violence.  We have charged gender-based persecution in three cases and two out of the three involved non-sexual violence committed against adult-aged males.  Gender persecution needs an understanding of the binary perspective and also other forms of sexual orientation and identity and how they can give rise to gender discrimination.  The representative emphasized that the rights, needs, and dignity of the victims need attention, protection, and respect.  Nonetheless, each individual needs to be treated as unique and the approach must be tailored. 

Other discussions during the question and answer component included topics related to understanding gender from the perspective of the victims, as well as the perpetrators, and projects being led in this area. 

Questions and interventions further focused on the case of Darfur from the gender perspective, as well as overconcentration to formal approaches to addressing gender problems, such as legislative reforms at national levels, which miss the need for more exponential change.  One of the participants pointed out that action needs to be much more on the ground referring to the importance of activism.