The latest contribution in our ongoing symposium on the Next ICC Prosecutor comes from Valerie Oosterveld. Valerie is a Professor at Western Law in London, Ontario. Her research and writing focus on gender issues within international criminal justice. In 1998, she was a member of the Canadian delegation to the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an ICC. In 2010, she served on the Canadian delegation to the Review Conference of the Rome Statute of the ICC in Kampala, Uganda. Be sure to also check out Danya Chaikel’s piece on the #MeToo movement and the Next ICC Prosecutor.
The Vacancy Announcement for the position of ICC Prosecutor indicates that candidates should have a range of experiences, skills and attributes, including a “commitment to … ensuring gender equality”. This particular aspect of the call for applications goes far deeper than a stated dedication to ensuring prosecution of sexual and gender-based violence (SGBV) crimes.
A commitment to ensuring gender equality has two crucial aspects.
First and foremost, the ICC’s Prosecutor must possess a solid understanding of the term ‘gender’ and its meaning for the substantive work of the Office of the Prosecutor (OTP). Gender is a social construct that differs from place to place, and even within cultures. Societies have overt or implicit (sometimes discriminatory) expectations of what ‘femaleness’ and ‘maleness’ means. As the OTP’s 2014 Policy Paper on Sexual and Gender-Based Crimes observes, the term ‘gender’ takes into account the “roles, behaviours, activities, and attributes assigned to women and men, and to girls and boys” in given societies. During times of heightened violence and the breakdown of the rule of law, these categories can shape who is targeted, who does the targeting, and in what manner. Those considered to fit the ‘maleness’ social construct in their society may be targeted for death, different forms of torture (including sexual torture), and particular types of physical forced labour. Those considered to fit the ‘femaleness’ social construct may be targeted for rape, sexual slavery, forced marriage, forced caregiving and forced domestic labour. Those who are viewed by perpetrators as not fitting into either social construct, such as LGBTQ+ or disabled individuals, may be targeted for specific humiliation and death. In other words, gendered assumptions by perpetrators about victims can inform almost every aspect of crimes committed during a conflict or mass atrocity.
Similarly, a society’s gender constructs can enhance, or overlook, harm done to victims. For example, a highly patriarchal society with deeply embedded discrimination against girls and women may react to sexual violence committed against its female members by rejecting survivors, further deepening the negative effects of the crimes. Perpetrators may count on these socially embedded responses to ensure the destruction of communities. At the same time, these girls and women may be narrowly categorized as ‘sexual violence victims’, even though their lived experiences are far more nuanced as survivors of a wide range of crimes directed at them, their family, and communities.
Harmful, incorrect or uninformed gendered assumptions can replicate themselves in the ICC’s investigations and prosecutions (and have done so in the past). These assumptions can, and have, unnecessarily limited investigations, prosecutions and judgments. This is why the OTP’s Policy Paper on Sexual and Gender-Based Crimes indicates that the OTP must take a “gender perspective” on investigations and prosecutions. Despite a very rocky start, the ICC’s OTP has made significant improvements since 2014, under Fatou Bensouda, in integrating gender into its working methods. The Policy Paper mentioned above was a significant step and was the first policy of its type in any international court or tribunal. The OTP’s 2019-2021 Strategic Plan recognizes the need to stay the course in implementing this policy. Strategic goal 4 indicates that the OTP will continue to refine and reinforce its approach to SGBV victims, among others, and “evaluate the implementation and effectiveness of these policies in practice”.
In other words, it is a fundamental job requirement that the ICC’s Prosecutor have a firm understanding of gender as a social construct, how gender informs and interacts with mass atrocities, and gender-sensitive justice response to those atrocities.
A second key aspect to a commitment to ensuring gender equality is that the Prosecutor must be a gender-competent leader and manager within the ICC. As a leader, the Prosecutor is not only the top prosecutor among many prosecutors; that individual is a leader who has the power to set and maintain the gender-sensitive tone and focus of the office, model appropriate behaviour, create policy and ensure that policy is practice. As a manager, the Prosecutor should ensure that s/he has in place gender-competent individuals throughout the OTP, including at the highest levels, to guide the work of the office. As indicated by the Women’s Initiatives for Gender Justice, this requires attention to gender mainstreaming, appointment of senior staff responsible for gender equality and the empowerment of female staff, support for the appointment of a Court-wide Gender Focal Point, gender balance in the OTP’s staff, ongoing training of OTP staff (including the Prosecutor) on gender issues, and an office culture in which gender analysis is standard from preliminary examinations through to appeals.
Given the deep connections between gender sensitivity and effective investigation and prosecution, I have three recommendations relevant both to the selection of the ICC’s third Prosecutor and to that Prosecutor’s tenure:
1) As stressed above, the next Prosecutor must be gender-competent. This means that the Prosecutor must understand that gender is a social construct that affects virtually all aspects of mass atrocities, and therefore a gender perspective must inform the investigation and prosecution of all crimes. This goes far beyond being alert to SGBV crimes – though, of course, attention to SGBV crimes is important. However, seemingly ‘gender-neutral’ criminal acts, such as murder, torture, enslavement, and persecution often, if examined more deeply, have gendered outcomes or are driven by gendered assumptions. Therefore, it is important for the Committee on the Election of the Prosecutor, the Panel of Experts and States Parties to examine the candidates’ past records on investigating and prosecuting both SGBV and other crimes with an eye to gender-competency at all steps and stages.
2) The next Prosecutor must continue to implement the Policy Paper on Sexual and Gender-Based Crimes, which represents a crucial step forward for the ICC, as well as other gender-sensitive policies such as the 2016 Policy on Children. The current Prosecutor, Fatou Bensouda, and members of her team have made great strides in significantly improving the gender-competency of the OTP since 2014 – as seen in cases such as Ongwen and Ntaganda. Even so, there have been gaps in applying the policy consistently and in training OTP staff members to implement the policy. Therefore, it is important for the Committee, Panel and States Parties to examine the candidates’ past experiences in addressing and implementing gender-related policy.
3) The next Prosecutor must be a leader within the OTP on the importance of gender-informed investigations and prosecutions and respectful gender-sensitive office culture. Consistent, genuine messaging and action must come from the top and permeate all levels and layers of the OTP. One significant step the third Prosecutor can take is to commit to, and hire, the type of gender advisor envisaged in article 42(9) of the Rome Statute: a senior-level member of the OTP staff – not an individual serving on a pro bono or ad hoc basis – who participates in executive level meetings, and who assists with policy, process and outcomes. Therefore, the Committee, Panel and States Parties must examine the candidates’ experiences in managing offices in a gender-competent manner, ensuring gender equity and gender balance in these offices, and ensuring offices free of sexual harassment. This last point requires the Committee to exclude individuals who have committed, condoned, or ignored sexual harassment in the past.
I will end by noting that this symposium is on the importance of selecting a strong, effective and, as I have argued above, gender-competent ICC Prosecutor. Let’s not lose sight of the need to elect strong, effective and gender-competent judges in December. We have seen some very concerning developments in certain quarters of the ICC’s judiciary in recent years, and the 2020 judicial election is a crucial step toward ensuring that States Parties elect highly qualified, superb candidates. However, that is a blog post for another day…
[With sincere thanks to Susana SáCouto for her comments on an earlier draft of this post.]