20TH SESSION OF THE ASSEMBLY OF STATES PARTIES
9 December 2021
Name of the Event: Fighting Against Impunity for Gender-Based Crimes: A Policy Paper on Gender Persecution (co-hosted by the Office of the Prosecutor and the Embassy of Sweden in the Hague)
Report by: Pauline Pfaff, Junior Research Associate PILPG-NL
Highlights:
The Office of the Prosecutor intends to publish a policy paper on persecution on the grounds of gender as a crime against humanity.
To be able to provide accountability for all forms of gender persecution, such as sexual violence, slavery, and the conscription of child soldiers, it is necessary to recognize the underlying discrimination.
The Office of the Prosecutor invites all stakeholders, including victims and civil society organizations, to participate in consultations to create an inclusive and transparent drafting process.
Speakers:
Kevin Jon Heller, Special Adviser on International Criminal Law Discourse; Professor of International Law and Security at the University of Copenhagen;
H. E. Mr Johannes Oljelund, Ambassador of Sweden to the Netherlands;
Karim A.A. Khan QC, Prosecutor of the International Criminal Court;
Véronique Aubert, Special Adviser on Crimes Against and Affecting Children; Lead on Children and Armed Conflict at Save the Children UK;
Patricia V. Sellers, Special Adviser on Slavery Crimes; Visiting Fellow at Kellogg College, Oxford University;
Kim Thuy Seelinger, Special Adviser on Sexual Violence in Conflict; Research Associate Professor of Public Health and Social Work and Visiting Professor in Law at Washington University in St. Louis;
Lisa Davis, Special Adviser on Gender Persecution; Associate Professor of Law, CUNY Law School and Co-Director, Human Rights and Gender Justice (HRGJ);
Danny Bradley, Global Campaigns Officer, MADRE
Summary of the Event:
Moderator Kevin Jon Heller, Special Adviser on International Criminal Law Discourse to the Office of the Prosecutor, opened the event by giving a brief introduction on sexual and gender-based crimes under the Rome Statute. He noted that the investigation and prosecution of such crimes is among the key priorities of the Office of the Prosecutor. In line with this prioritization, the Prosecutor intends to publish a policy paper on gender persecution. Heller underlined that the Office of the Prosecutor welcomes any proposals and comments on such a policy paper.
Swedish Ambassador Johannes Oljelung delivered the first opening remarks. He highlighted his country’s efforts towards a gender-sensitive and feminist foreign policy. The Ambassador stressed the need to recognize and address the persistent and systematic discrimination against women. Impunity for sexual and gender-based crimes fundamentally undermines transitional justice efforts. He remarked that his country is the biggest donor to the Trust Fund for Victims and underlined the importance of the Fund in addressing gender-related issues in the aftermath of atrocities. Furthermore, the Ambassador observed that the Court has made great achievements in ensuring accountability for sexual and gender-based crimes, as highlighted by the conviction in the Ntaganda case. He welcomed the proposed policy paper on gender persecution and commended the inclusive and transparent drafting process, which he stated should serve as precedent for the drafting of other policies.
Next, the Prosecutor himself addressed the attendees. Prosecutor Khan noted that, while the Court has come a long way in addressing sexual and gender-based crimes, more is to be done in light of the high prevalence and gravity of such crimes. The Prosecutor highlighted that, in this pursuit, he appointed new Special Advisers and initiated consultations on the policy paper on gender persecution. He outlined that the consultations with stakeholders, including victims, civil society organizations, and scholars, will be undertaken in two stages: first prior to the drafting of the policy paper, and second after the publication of such a draft. He further noted that the policy paper will not constitute a final product but is intended to be a living document under constant review. The Prosecutor extends a call to all to participate and share their experience in the drafting process.
In the remaining time, Heller asked each panelist a question. First, he asked Véronique Aubert, Special Adviser on Crimes Against and Affecting Children, how the policy paper should address gender-based crimes against children. Aubert extended two core recommendations. First, the policy paper needs to capture the diversity of gender crimes suffered by children, for instance, attacks on education, sexual enslavement, or the conscription of child soldiers. Second, she underlined the importance of employing an intersectional framework to address the diverse identities of children. In this context she especially underlined that the identities of children are as complex as those of adults, but with one core difference that they vary to a greater extent in connection to age. She urged that this circumstance is considered during investigations and prosecutions. She called for close cooperation with experts on the development of children, especially from the respective country to ensure that all specificities of children are taken into account.
Next, Heller addressed Kim Seelinger, Special Adviser on Sexual Violence in Conflict, and asked her how sexual violence fuels discrimination. Seelinger noted that there is a lot of similarity with the issues raised by Aubert in relation to children and that discrimination always underlies persecution. She further notes that discrimination, especially based on gender stereotypes, drives sexual violence. Seelinger highlights that inspiration on how to address this link may be taken from refugee law, where persecution is described as committed against socially constructed groups. She elaborates that socially constructed roles for men and women often form the basis of type of persecution experienced together with other factors such as religion or ethnicity, thus here too an intersectional approach is required. She further underlined that sexual violence is not only experienced by women, but also men and members of the LGBTQ community.
Subsequently, Heller asked Patricia Sellers, Special Adviser on Slavery Crimes, why it is important to look at enslavement from a gender crime perspective. Sellers described persecution as apt entry point to address slavery crimes before the International Criminal Court. She added that slavery, defined as the exercise of any or all powers of ownership over another person, and is gender-based. Further, she identified discrimination as key element of both why individuals are persecuted and enslaved, with an estimate of 99% of enslaved persons also being persecuted. Thus, Sellers concluded that any policy paper on gender persecution should address the gendered underpinnings of enslavement.
Lisa Davis, Special Adviser on Gender Persecution, responded to a more general question: why is a policy paper on gender persecution important? She explained that it is widely known that conflict actors perpetrate crimes amounting to gender persecution under crimes against humanity and identified four core requirements to address them adequately. First, it needs to be understood why such crimes occur. Second, it is necessary to capture the discriminatory undertones of gender-related crimes. Third, it needs to be ensured that victim experiences are heard to fully understand the crimes. Fourth, an intersectional view of gender persecution and discrimination is required. In her final words, she cautioned that failing to address gender persecution undermines peacebuilding and fails to acknowledge root causes of crimes and conflicts. She reiterated the Prosecutor’s invitation to stakeholders to participate in consultations and stated that the first official event for this is scheduled for March 18, 2022.
Finally, Heller asked Danny Bradley, a representative of MADRE, what role civil society may play in the drafting of the policy paper. Bradley underlined the opportunity provided by the policy paper to achieve greater clarity on and publicity for the long-overlooked topic of gender persecution and its potential to strengthen not only the work of the International Criminal Court but also civil society actors. He saw the role of civil society actors in the drafting process to make the voices of victims and affected communities heard and ensure that the policy paper has a positive impact on the ground. Bradley further added that the role of MADRE will be to facilitate the participation and engagement of civil society in the drafting process and will to this end host a series of consultations and workshops to show civil society organizations how they can participate and represent their communities best. To conclude, Bradley noted that a strong policy paper would make a great difference in promoting accountability for gender persecution both at an international and national level.