THE WOMEN'S CAUCUS FOR GENDER JUSTICE NEEDS YOUR SUPPORT

Action Alert - The Women's Caucus for Gender Justice Needs Your Support

Peace Movement Aotearoa

PO Box 9314, Wellington. Tel (04) 382 8129, fax (04) 382 8173, pma@apc.org.nz

Issued 10 February 1999

CONTACT OFFICIALS THIS WEEK RE NEW INTERNATIONAL CRIMINAL COURT (ICC) NEGOTIATIONS
The Women's Caucus for Gender Justice is preparing for the 16-26 February 1999 Prepcom on the International Criminal Court. The Prepcom will begin discussions of the Rules of Procedure and Evidence and the elements or definitions of the crimes within the Court's jurisdiction. We need your help again to ensure that our successes in incorporating gender in the Rome treaty which created the ICC will not be undermined.

To support our work at the PrepCom, we are asking you to contact your foreign ministries, justice ministries and others, including parliamentarians and other NGOS, who could influence your country's delegates at the UN. We urge you to call, write and/or where possible set up visits to discuss these matters AS EARLY AS POSSIBLE THIS WEEK so that delegations will know that the small Women's Caucus delegation is broadly supported and will have a sense of the gender issues requiring attention. Also, attached below for your convenience is a letter of support outlining these issues which can be forwarded to the appropriate persons at those ministries. Please make the minor changes to it in order to reflect the signature/ratification status in your country.

We apologize for providing only a week to respond to this alert. The date for the PrepCom was set one month earlier than expected and we have been scrambling to get our positions and funds for a small delegation together. Because we will be few, it is particularly important that your delegates at home hear from you!

WITH RESPECT TO THE ICC, PLEASE EMPHASIZE THESE GENERAL POINTS:

The Women's Caucus strongly supports ratification of the Rome Treaty creating the International Criminal Court. A list of states which have signed the Treaty (73 as of Feb. 4, along with Senegal, the first to ratify) is attached. Please thank countries who have signed and inquire regarding plans for ratification, domestic law reform, etc. (and please let us know what you find out).
The Women's Caucus is opposed to efforts, led by the United States, to reopen questions of jurisdiction settled in Rome. In Rome, we fought for a broader concept of automatic, universal jurisdiction, which would have allowed the Court to exercise jurisdiction over cases referred by states having custody of the accused or whose citizens were victims. The Rome treaty already diluted this principle and should not be reopened.
With respect to elements or definitions of crimes and rules of evidence and procedure, outlined below, please urge your delegates to support the positions advocated by the Women's Caucus. We recognize that this is asking for your trust. Our positions are still being reviewed as to scope and strategy by women from all regions and systems of criminal law and we will collectively need to revise our positions in the negotiation process. Ultimately, the Caucus claims to represent a consensus, and not necessarily unanimity.

I. ON ELEMENTS OR DEFINITIONS OF CRIMES, THE KEY ISSUES ARE:

As a preliminary matter, the Elements Annex should not impose requirements in addition to those contained in the Rome statute and thus make the crimes more difficult to prosecute.
The Annex should state that acts of rape and other forms of sexual violence, in addition to constituting crimes in and of themselves, can also constitute other crimes falling within the Court's jurisdiction. It was crucial that rape and other forms of sexual violence are explicitly grave crimes within the Court's jurisdiction. But, we now face the danger of marginalization-- that sexual violence will not be recognized when the charges of torture and other general violations are drawn. It must be clear that sexual acts should also be charged as genocide, killing, mutilation, torture, inhuman treatment other, war crimes or crimes against humanity.
The presence of conditions or circumstances of force, coercion or duress or threat thereof should be sufficient to prove any crime of sexual violence. It should not be necessary to show direct force or threats by the alleged perpetrator. Proving such conditions or circumstances should render it unnecessary to show that the victim resisted or did not consent. This will be particularly controversial.
With regard to particular crimes:
4(a). Rape: The definition should follow recent international cases. The Akayesu definition from the Rwanda Tribunal is the broadest: a "physical invasion of a sexual nature committed against a person under circumstances which are coercive." Other definitions refer to an element of "penetration, however slight." We anticipate resistance to moving away from the traditional penetration-focused approach.
4(b). Sexual Slavery and Enforced Prostitution: The term "enforced prostitution," previously applied to situations such as the "comfort women," is usually a euphemism for sexual slavery. Our main goal is to obtain a definition of slavery that applies generally to these situations and to ensure that enforced prostitution will not substitute for it.
4(c). Other forms of sexual violence: This must be broad enough to cover non- contact abuse like forced nudity or forced sexual entertainment which has already been recognized as inhuman treatment.

II. ON RULES OF PROCEDURE AND EVIDENCE, THE KEY ISSUES ARE:

A. COURT STAFFING AND REGULATIONS: The ICC statute recognizes that there should be expertise on violence against women and fair representation of women and men among the staff at all levels and in all organs of the Court, including judges. The Rules must require notice to the public regarding nominations, high level oversight by gender experts, and gender training of all personnel. The Rules should also require notice to the public and an opportunity to comment prior to amendment of the rules or regulations of the Court.

B. WITNESS PROTECTION: The Victims and Witnesses Unit, staffed by competent and gender-sensitive personnel and independent of the Prosecutor, must provide support to as well as maintain the confidences of victims and witnesses. At trial, the Court should be able to allow witnesses to testify without their identity being known to the public (i.e. confidentially) and, in cases where risk of death or physical or mental harm outweighs harm to the rights of the accused, without their identity being made known to the defendant (i.e. anonymously).

C. VICTIM AND WITNESS PARTICIPATION IN PROCEEDINGS: The Rules should give effect to the provisions in the ICC statute entitling victims and witnesses to participate at every stage, including investigation, trial and appeal. The Rules should recognize the right of the victim or victim's representative to present information orally or in writing and subject to all the protections provided in the statute.

D. AMICUS PARTICIPATION: The Rules should recognize the right of NGOs and other interested groups or individuals to present additional views on the issues before the Court.

E. CORROBORATION AND PRIOR SEXUAL CONDUCT: The Rules must state that in cases of sexual assault, no corroboration of the victim's testimony will be required. Corroboration reflects stereotyped assumptions that women who charged rape were not believable. The Rules should also explicitly prohibit the admission of the prior sexual conduct of the victim(s) as irrelevant and discriminatory.

F. NO DEFENSE OF CONSENT: According to offensive, traditional stereotypes embodied in rape laws, it was not enough that a woman was subject to direct force; the prosecutor had to show that she resisted or that it would have been futile and that she did not consent. The Caucus is still fine-tuning its position, but will effectively argue that where circumstances of force, coercion, duress or abuse of authority are shown, there can be no inference or defence of consent.

G. COUNSELLOR-PATIENT PRIVILEGE: The Rules should include a psychiatric and counsellor-patient privilege to prevent disclosure of counselling records obtained in the course of therapy or in communication with the Victim Witness Unit. This is particularly important in cases of sexual violence crimes.

Please contact us if you have any information or questions to relay from your contacts at the ministries or if you need clarification on any of these issues.

Please also send us any information concerning your country's laws and procedures that are supportive of the positions we are taking.

THANK YOU FOR YOUR IMMEDIATE SUPPORT AND ASSISTANCE!! YOUR LETTERS AND CONTACTS WERE CRITICAL TO OUR SUCCESS IN ROME. THEY WILL BE CRITICAL AGAIN.!!!

Please also note that the Optional Protocol to the Women's Convention on the Elimination of All Forms of Discrimination Against Women--designed to create an effective complaints procedure--will be negotiated during the first two weeks in March at the meeting of the Commission on the Status of Women at the UN. The Women's Caucus will seek to influence these negotiations as well and will send you an alert in this regard in the near future.

Women's Caucus for Gender Justice
P.O. Box 3541 Grand Central Post Office
New York, NY 10163 USA
tel: 212-697-7741
iccwomen@igc.org

(Signatories and Ratification Status of the Rome Statute)

On 3 February 1999, Senegal became the first State to ratify the Statute to establish an International Criminal Court, the United Nations Office of Legal Affairs announced. The instrument of ratification, lodged with the Secretariat on 2 February, was received two weeks prior to a Preparatory Commission meeting in New York that will discuss arrangements for the operation of the Court once the Statute comes into force. The Statute will come into force when 60 States have ratified it.

Following is an unofficial list of Signatories to the Rome Statute as of 15 January 1999, when Hungary became the 74th State to sign onto the Statute.

1. Albania 18 July 1998
2. Andorra 18 July 1998
3. Angola 7 October 1998
4. Antigua and Barbuda 23 October 1998
5. Argentina 8 January 1999
6. Australia 9 December 1998
7. Austria 7 October 1998
8. Belgium 10 September 1998
9. Bolivia 17 July 1998
10. Burkina Faso 30 November 1998
11. Burundi 13 January 1998
12. Cameroon 17 July 1998
13. Canada 18 December 1998
14. Chile 11 September 1998
15. Colombia 10 December 1998
16. Congo (Brazzaville) 17 July 1998
17. Costa Rica 7 October 1998
18. Cote d'Ivoire 30 November 1998
19. Croatia 12 October 1998
20. Cyprus 15 October 1998
21. Denmark 25 September 1998
22. Djibuoti 7 October 1998
23. Ecuador 7 October 1998
24. Eritrea 7 October 1998
25. Finland 7 October 1998
26. France 18 July 1998
27. Gabon 22 December 1998
28. Gambia 7 December 1998
29. Germany 10 December 1998
30. Georgia 18 July 1998
31. Ghana 18 July 1998
32. Greece 18 July 1998
33. Honduras 7 October 1998
34. Hungary 15 January 1999
35. Iceland 26 August 1998
36. Ireland 7 October 1998
37. Italy 18 July 1998
38. Jordan 7 October 1998
39. Kyrgyzstan 8 December 1998
40. Lesotho 30 November 1998
41. Liberia 17 July 1998
42. Lichtenstein 18 July 1998
43. Lithuania 10 December 1998
44. Luxembourg 13 October 1998
45. Macedonia, Former Yugoslav Rep. 7 October 1998
46. Madagascar 18 July 1998
47. Mali 17 July 1998
48. Malta 17 July 1998
49. Mauritius 11 November 1998
50. Monaco 18 July 1998
51. Namibia 27 October 1998
52. Netherlands 18 July 1998
53. New Zealand 7 October 1998
54. Niger 17 July 1998
55. Norway 28 August 1998
56. Panama 18 July 1998
57. Paraguay 7 October 1998
59. Samoa 17 July 1998
60. San Marino 18 July 1998
61. Senegal 18 July 1998
62. Sierra Leone 17 October 1998
63. Slovakia 23 December 1998
64. Slovenia 7 October 1998
65. Solomon Islands 3 December 1998
66. South Africa 17 July 1998
67. Spain 18 July 1998
68. Sweden 7 October 1998
69. Switzerland 18 July 1998
70. Tadjikistan 30 November 1998
71. United Kingdom 30 November 1998
72. Venezuela 14 October 1998
73. Zambia 17 July 1998
74. Zimbabwe 17 July 1998

***COMPILED BY THE CICC SECRETARIAT***

(Letter of Support)
Dear __________,

The Women's Caucus for Gender Justice is preparing for 16-26 February 1999 PrepCom on Rules of Procedure and Evidence and definitions of crimes for the International Criminal Court, the first PrepCom since the adoption of the Rome Statute of the ICC last July. We support the Women's Caucus efforts to continue advocating the incorporation of gender concerns, as it did during the drafting of the Statute, in the development of the procedures to be followed by the Court.

The Women's Caucus strongly supports ratification of the Rome Treaty creating the International Criminal Court. (We understand that ___________ has signed onto the treaty and extend our appreciation for your support of the statute which represents an important step forward in the protection of human rights.)/(We understand _________ has not yet signed on to the statute. We urge that __________ become a signatory to this groundbreaking opportunity to ensure justice for some of the most serious violations of human rights.)

2. The Women's Caucus is opposed to efforts, led by the United States, to reopen questions of jurisdiction settled in Rome. In Rome, the caucus fought for a broader concept of automatic, universal jurisdiction, which would have allowed the Court to exercise jurisdiction over cases referred by states having custody of the accused or whose citizens were victims. The Rome treaty already diluted this principle and should not be reopened.

The following are among the issues the Caucus has identified as priority concerns for the upcoming PrepCom:

I. ON ELEMENTS OR DEFINITIONS OF CRIMES, THE KEY ISSUES ARE:
1. As a preliminary matter, the Elements Annex should not impose requirements in addition to those contained in the Rome statute and thus make the crimes more difficult to prosecute.
2. The Annex should state that acts of rape and other forms of sexual violence, in addition to constituting crimes in and of themselves, can also constitute other crimes falling within the Court's jurisdiction. It was crucial that rape and other forms of sexual violence are explicitly grave crimes within the Court's jurisdiction. But, we now face the danger of marginalization-- that sexual violence will not be recognized when the charges of torture and other general violations are drawn. It must be clear that sexual acts should also be charged as genocide, killing, mutilation, torture, inhuman treatment other, war crimes or crimes against humanity.
3. The presence of conditions or circumstances of force, coercion or duress or threat thereof should be sufficient to prove any crime of sexual violence. It should not be necessary to show direct force or threats by the alleged perpetrator. Proving such conditions or circumstances should render it unnecessary to show that the victim resisted or did not consent.
4. With regard to particular crimes:

4(a). Rape: The definition should follow recent international cases. The Akayesu definition from the Rwanda Tribunal is the broadest: a "physical invasion o0f a sexual nature committed against a person under circumstances which are coercive." Other definitions refer to an element of "penetration, however slight."

4(b). Sexual Slavery and Enforced Prostitution: The term "enforced prostitution," previously applied to situations such as the "comfort women," is usually a euphemism for sexual slavery. The Rules must put forth a definition of slavery that applies generally to these situations and to ensure that enforced prostitution will not substitute for it.

4(c). Other forms of sexual violence: This must be broad enough to cover non- contact abuse like forced nudity or forced sexual entertainment which has already been recognized as inhuman treatment.

II. ON RULES OF PROCEDURE AND EVIDENCE, THE KEY ISSUES ARE:

A. COURT STAFFING AND REGULATIONS: The ICC statute recognizes that there should be expertise on violence against women and fair representation of women and men among the staff at all levels and in all organs of the Court, including judges. The Rules must require notice to the public regarding nominations, high level oversight by gender experts, and gender training of all personnel. The Rules should also require notice to the public and an opportunity to comment prior to amendment of the rules or regulations of the Court.

B. WITNESS PROTECTION: The Victims and Witnesses Unit, staffed by competent and gender-sensitive personnel and independent of the Prosecutor, must provide support to as well as maintain the confidences of victims and witnesses. At trial, the Court should be able to allow witnesses to testify without their identity being known to the public (i.e. confidentially) and, in cases where risk of death or physical or mental harm outweighs harm to the rights of the accused, without their identity being made known to the defendant (i.e. anonymously).

C. VICTIM AND WITNESS PARTICIPATION IN PROCEEDINGS: The Rules should give effect to the provisions in the ICC statute entitling victims and witnesses to participate at every stage, including investigation, trial and appeal. The Rules should recognize the right of the victim or victim's representative to present information orally or in writing and subject to all the protections provided in the statute.

D. AMICUS PARTICIPATION: The Rules should recognize the right of NGOs and other interested groups or individuals to present additional views on the issues before the Court.

E. CORROBORATION AND PRIOR SEXUAL CONDUCT: The Rules must state that in cases of sexual assault, no corroboration of the victim's testimony will be required. Corroboration reflects stereotyped assumptions that women who charged rape were not believable. The Rules should also explicitly prohibit the admission of the prior sexual conduct of the victim(s) as irrelevant and discriminatory.

F. NO DEFENSE OF CONSENT: According to offensive, traditional stereotypes embodied in rape laws, it was not enough that a woman was subject to direct force; the prosecutor had to show that she resisted or that it would have been futile and that she did not consent. Where circumstances of force, coercion, duress or abuse of authority are shown, there can be no inference or defence of consent.

G. COUNSELLOR-PATIENT PRIVILEGE: The Rules should include a psychiatric and counsellor-patient privilege to prevent disclosure of counselling records obtained in the course of therapy or in communication with the Victim Witness Unit. This is particularly important in cases of sexual violence crimes.

We appreciate your attention to these issues and as well as your attention to the efforts of the Women's Caucus during the 16-26 February PrepCom. For further information on these or other issues, contact the caucus at:

Women's Caucus for Gender Justice
P.O. Box 3541 Grand Central Post Office
New York, NY 10163 USA
tel: 212-697-7741

Thank you,

Signed: __________________

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