Justice for All? The International Criminal Court – a conference: 10 year review of the ICC

Penny Williams, Australia's Global Ambassador for Women, E&OE

Australian Human Rights Centre, University of New South Wales, Sydney

14 February 2012

"[It is] something you never forget. I carry it with me in my heart, in my soul. I think of it when I go to bed and I think of it when I get up. It doesn't let you go."

These words were spoken by a survivor of rape in armed conflict. To me these words help explain why gender justice is so important, and why I'm very glad that the delegates to this Conference will be considering how gender issues can be progressed through the Rome Statute system.

Honoured guests, conference delegates, as was mentioned in my introduction, in 2011 I was appointed as Australia's first Global Ambassador for Women and Girls. I have a very broad mandate. It covers issues relating to the eradication of violence against women and girls, gender equality and the elimination of discrimination against women and girls, the protection of women and girls in conflict, the promotion of the role of women in peacebuilding, and enhanced participation of women in decision-making and leadership. In other words, almost all of the gender issues that might be identified as being relevant to the ICC are relevant to my mandate, which is why I'm so pleased to be here today to offer some opening remarks.

Sexual and gender-based violence has a long history of being characterised as an unfortunate by-product of war. Ancient texts demonstrate that the licence to rape was regarded as a significant incentive for the soldier involved in siege warfare. Mid-last century international humanitarian and human rights law came a long way in addressing such issues. Sadly, however, despite this, brutal sexual violence and other gender crimes are today as prevalent as ever, still being used to intimidate populations, and to form bonds between and to reward soldiers, particularly by non-State armed groups – groups that pay too little attention to the law.

International criminal law, therefore, has a vital role to play in relation to sexual and gender-based violence. It will be well known to the members of this audience that in a series of landmark decisions the ad hoc tribunals that preceded the International Criminal Court shattered the silence that had long surrounded sexual violence and determined that a range of conduct connected to sex and gender could constitute war crimes, crimes against humanity and genocide.

Of course, one of the principal achievements of the Rome Statute was its incorporation of specific references to rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and other form of sexual violence as crimes against humanity and war crimes. Gender is recognised as a basis for the crime against humanity of persecution. And the Elements of Crimes specify that genocide by causing bodily or mental harm may include rape and sexual violence. Looking more broadly at gender issues, the reflection of gender equality in the Statute, the incorporation of requirements for gender expertise, the special protections afforded to women and victims of sexual violence, and the requirement under the Rules of Procedure and Evidence to take gender sensitive measures to facilitate the participation of victims of sexual violence were all incredibly important developments.

As we reflect on the ten years since the Rome Statute entered into force and look to the future, the question we must ask is whether the ICC has or can meet the promise inherent in its Statute. Much has been done that deserves our praise, including the Office of the Prosecutor's attention to these crimes in the cases currently before the Court, the appointment of the Prosecutor's Special Adviser on Gender Crimes, and the recognition that staff require special training to deal with these sensitive crimes.

And yet, as always, more can be done. For example, concerns have been raised that insufficient evidence has been presented in a significant number of instances to satisfy the Pre-Trial Chamber that gender-based crimes should be confirmed. Calls have been made to increase the gender expertise of the Court. Women are under-represented in the victim participation system and yet at the same time questions are starting to be asked about the feasibility of that system as currently constituted.

These are complex and challenging issues and I hope the Conference's discussion of them will be both thorough and productive. And as Australia's Ambassador for Women and Girls I look forward to working with you to help ensure that victims who carry these crimes around in their hearts and in their souls receive justice before the International Criminal Court or before the national courts that the Rome Statute inspires.