Women and International Courts and Tribunals

Þórdís Ingadóttir

In my presentation I will only focus on two issues: First, I want to talk about women as victims before the tribunals; and primarily in regard to their participation in the prosecution of sexual violence. Sexual violence against women and men in conflicts is nothing new, but what is new is that the prosecution of these crimes before international courts has changed dramatically in the last few years, to say the least.

The second part of my presentation I want to devote to the issue of women in power at international courts and tribunals, and in that respect I will only discuss their role as judges at these institutions. For a long time, women have been underrepresented at international courts and tribunals and resolution 1325 has a bearing on that issue.

I. International criminal tribunals

As a prologue, in the last decade there has been a proliferation of international tribunals, in particular criminal ones.

In 1993 the Security Council established the International Criminal Tribunal for the former Yugoslavia, (ICTY), located in the Hague, to prosecute war crimes, crimes against humanity and genocide, committed in the Balkans, starting in 1991. A year later, in 1994 the Security Council established the International Criminal Tribunal for Rwanda, (ICTR), located in Arusha, Tanzania, as a response to the genocide in Rwanda in the spring of 1994, where about 800,000 people were slaughtered in a period of 60 days.
And then, what is widely known, in July 1998, 120 states adopted the Rome Statute of the International Criminal Court, the first permanent international criminal court, and with the 60 necessary ratifications the Rome statute entered into force in July of last year, which also means that the jurisdiction of the courts starts from that time. Judges of that tribunal were elected last February, and its Prosecutor took office in June this summer. Today, 92 states have ratified the treaty.

Then we have the new branch in the family tree of international courts: the so-called hybrid or internationalized criminal tribunals, which started to emerge in 1999. These tribunals differ from other tribunals. They have both international and national judges, and apply both national and international law, and they are located where the conflict took place. I am here referring to the Serious Crimes Panels in East Timor, the international panels in Kosovo, the Special Court of Sierra Leone, and the pendent panels in Cambodia. All of the hybrid tribunals are established under the auspices of the United Nations.

II. Prosecution of sexual violence against women

As for the ICTY and ICTR the violence against women during respective conflicts was epidemic, and as we all recall shocked the consciousness of world, when gradually revealed, and these crimes were often a part of a deliberate policy – the crimes were weapons of war. However, the statutes of the ICTY and ICTR have few provisions which explicitly mention sex crimes. The sexual violence provision included only rape, somewhat reflecting previous practice, and the statutes listed the crime only under crimes against humanity and not as a war crimes. This distinction may sound obsessively legal but the distinction is significant, especially for these types of crimes, as crimes against humanity must be committed on either a widespread or systematic basis, a very high threshold, while war crimes can be a only single act.

At the outset of the work of these tribunals the sexual violence against women were not particularly focused on, this was definitely not a priority issues. For instance sexual violence against were not charged in the first indictments in Rwanda. It was for the pressure of scholars, NGOs, and few individuals at the court, foremost judge Pillay, who consistently asked the witnesses about these crimes while the prosecution did not do so, eventually forcing the prosecutor to change his indictments and add the crimes to list of charges.

Things have of course changed dramatically since these first days. As of 2001 over half of the indictments at the ICTY were crimes of sexual violence, and a little less at the ICTR. And despite meager provisions in the statutes, the Prosecution has been able to prosecute these crimes successfully, both as an instrument in genocide, crimes against humanity, and greave breaches of the Geneva Conventions. This has been done, at times, by inventive ways, by using provisions in the statute criminalizing torture, inhuman treatment, willful killing, enslavement and so on. At the same time the judgments of the tribunals have brought extraordinary process in defining crimes of sexual violence, such as rape.

Having said this, we must though keep in mind that this success has been achieved slowly and step by step. There were many crimes never prosecuted, others were charged, but then charges withdrawn, etc.

Women as witnesses of sexual violence

The successful prosecution of these crimes is a result of painstaking process, and that is the process of testimonies of the victims of these crimes. The ICTY and ICTR are to large extent totally dependent on witness testimonies – testimonies by strong witnesses, able to withstand a trial, a cross-examination and so on. The tribunals are not able to rely on detailed paper trails like their predecessors in Nuremberg and Tokyo. In each case before these tribunals there are dozens of witnesses. In the Tadic case alone there were 126 witnesses; currently about 600 witnesses testify a year at the ICTY.

Logistically, a witness testimony is a complicated process. For instance, witnesses need travel documents, which many do not have; some are residing illegally in a third country and don’t want to risk being not able to return. The journey to The Hague can be equally complicated journey.

For women to testify can be a difficult experience, particularly for victims of sexual violence. Let alone the fact that this often means leaving the family you take care of, your house, farm, and sometimes livestock, which can entail considerable risk in some areas. And then on top of everything, victims of sexual violence become often re-traumatized, and in that sense victimized again. Then you have cultural and social stigma often related to these crimes; many of these women do not want to reveal their horrific experience, neither to their village or neighbors, and some do not want their husband or family to know about the crimes. In those instances, great care has to be taken. In such surroundings things like envelopes with the official stamp of the tribunal sent to their homes, or an UN van picking them up at their home, a walk to the UN airplane, in full view of everyone at the Kigali airport, can be disastrous for the well being of these victims. Everyone will know what is going on. But, the tribunal have also come a long way, lessons are learnt every day, sometimes, regrettably, the hard way.

The victims and witnesses units at the tribunals were both established as an afterthought, as they were not provided for in the tribunals’ statutes. Today, the units provide psychological and physical support, and prepare witnesses to testify and withstand the trial. These services took considerable time to develop, and it is still debated to what extent the tribunals can provide support to some of these victims. For instance, due to the crimes, many of the witnesses are HIV infected. In order to keep them alive until the trial takes place, the tribunals have provided them with medical treatment. And, then the question remains, can the tribunals just stop the treatment when the trial is over, and leave witnesses on their own, or should the witnesses gain treatment for the rest of their life. This issue has a major financial bearing for the tribunals, and has also invoked the issue of paid witness testimony.

This is of course the argument of the defence: some of these witnesses will simply testify what is needed, in order to get medical treatment, which they would otherwise have no possibility of having.

During the trial themselves, protective measures have been developed to ease the trauma for these victims of sexual crimes. These measures are threefold: Protective measure with respect to the public, media, and the defendant. These include measures such as not including identifying information in the tribunal’s public records; facial and voice distortion in the tribunals broadcasting, etc. More progressive measures are screens so the witness does not necessarily have to face their perpetrator, or even camera proceeding so the witness can be in another room. Anonymous testimony has been very controversial, and here I am referring to testimony by a witness where his or her identity is not revealed to the defendant. In the early days at the ICTY, this was allowed on one occasion and caused great controversy; witness H in the Tadic case. It has never been allowed since. The issue came up again in the drafting of the Rules of Procedure and Evidence of the Rome statute of the ICC and was heavily debated among both delegates and NGOs. Women’s groups favored and campaigned for the possibility of such measures, while other NGOs, such as the Amnesty International, opposed it, citing the right of the defendant for a fair trial. The eventual compromise reached is a very ambiguous provision, which language does not make this clear. This was done on purpose, so this will be up to the judges to decide.

Finally, keep in mind that there are also witnesses who want to face their perpetrators, sitting in the dock watching their hands – showing them they survived.

The International Criminal Court

Well, to say the least, the International Criminal Court has benefited tremendously from the work of the ICTs, both with respect to their jurisprudence, and all the practical arrangements I have been referring to.

The Rome statute recognized range of acts of sexual violence and they are criminalized both as crimes against humanity, and war crimes. And the crimes are called their names, the prosecutor does not have to charge these crimes in the name of torture, etc. For instance, in the Rome statute criminalizes rape, sexual mutilation, sexual slavery, and enforced pregnancies. The inclusion of some of these crimes was highly debated, particularly enforced pregnancies. The Holy See and few other states opposed it, arguing that the international community was trying to get the issue of abortion on the international agenda. But following intense negotiations and diplomacy, the crime was included in the statute, with a detailed definition.

Similarly, gender concerns and consideration for the victims of sexual violence can be found throughout the statute. This applies both to the investigation and the trial stage. The prosecutor and the registry have to take great care of witnesses of sexual violence, and this is stipulated in various provisions. Similarly, the establishment of a VWU is in the statute itself, and it shall provide councelling, and include staff with expertise in trauma, including trauma related to sexual violence (art. 43.6). All these provisions are then further implemented in the Rules of Procedure and Evidence of the court.

But the Rome statute goes still beyond – way beyond-, and that brings me to my last point with respect to the representation of women among the officials of the court. Revolutionary in the field of international courts in general, according to article 36 of the Rome statute, states parties shall in their selection of judges take into account „fair representation of female and male judges“.

III. Representation of female judges

The representation among international judges is of course nothing new. To a great extent, the legitimacy of international courts depends on their compositions, and one of the core principles at these institutions has been diversity among their judges. Most international courts require that no two judges shall be of the same nationality, and that in their selection a due account shall be taken to representation of the different legal system of world, and equitable geographical representation. The requirements are sometimes implemented through regional quotas, like at the International Court of Justice and the International Tribunal for the Law of the Sea, where seats are distributed among the regional groups.

Well, the Rome Statute entails all these requirements, in addition to the new one.

The requirement of fair representation of female and male judges is consistent with developments at the international level. The Beijing declaration and Platform for Action calls on governments and international institutions to „aim for gender balance when nominating or promoting candidates for judicial and other positions in all relevant bodies, such as the [ICTY] and [ICTR] and the International Court of Justice.“ In its resolution 1325, and subsequent resolutions endorsing that resolution, the UN Security Council „urges member states to ensure increased representation of women at all decision-making levels in … international institutions and mechanism for the prevention, management and resolution of conflict.“ For some years now, the General Assembly, yearly, in its resolutions on Improvement of the status of women in the United Nations system: „strongly encourage Member states … to identify and nominate more women candidates for appointment or election as judges or other senior officials in international courts and tribunals.“

Women representation among judges of international courts and tribunals has been minimal. For instance, among the 75 judges of the appellate body of the WTO, ICJ, ITLOS, ICTY and ICTR only five are women. And despite what one could assume from the above statements and commitments of the General Assembly and the Security Council, things have not been improving. In fact, in some cases the development is reverse – we have now only one permanent judge at the ICTY, we used to have two. To illustrate, the last election there, which took place only four months after the adoption of resolution 1325, there were 26 candidates, among them only two women. One woman was elected, a sitting judge at the tribunal with very good reputation, and she was the last one to be elected in the 13th and the last round. In the elections last year at the ICJ and ITLOS, there were no women candidates. Similarly, we had an election at the ICTR this year, and only three women were among the 14 judges elected at that tribunal, the same number as before.

The election of judges to the ICC took place last February. In the preparation work prior to the elections, no one knew how to deal with the new requirement. There was also not a consensus on implementation of the other requirements, and primarily the equitable geographical representation. The usual quotas for each region, where the seats are divided among the regional groups, were not acceptable to a few states, powerful states, like the UK, Canada and the Netherlands. On the other hand, states within the African group favored such quotas.

Well the compromise, following months of negotiations, was something totally new -a minimum voting system (MVS). In explaining the system, I will only address the requirement of fair representation of female and male judges.

When electors came to vote in February for the first 18 judges of the tribunals, they had in front of them list of 45 candidates, and noticeably 10 of them were women. When casting their ballots, electors had to vote for at least 6 male and 6 female candidates, but only provided that there would be at least 10 candidates of each sex. This compromise was to ensure that no one would be automatically elected. Similarly, the MVS was to be abandoned after four rounds of voting. In theory, and if you do the math, as you need two thirds of the votes to get elected, the system did not guarantee anything. For instance, in worst-case scenario, if voting had spread fevenly among the female candidates, and states would have voted only for 6 women, and not used any of their 6 remaining votes, no woman would have been elected.

Most important of all, following marathon voting of 33 rounds over four days, we had finally 18 judges elected, and 7 of them were women, a groundbreaking record in representation of women judges before international courts and tribunals.

What does this mean? First, a pool of women candidates is out there. Secondly, earlier policy initiatives and undertakings have not worked; the issue needs to become a legal one, instead of a policy one, for any tangible progress to come about. Will this have an impact on the elections at other tribunals? I sincerely hope so. However, the adoption of the requirement in Rome 1998 did not seem to have much affect; international tribunals established since then did not incorporate the requirement. But the ICC election in February – resulting in a diverse and representative bench – has certainly reinforced the issue.