On June 9, 2011, ICC Chief Prosecutor Luis Moreno-Ocampo announced that he is likely to add mass rape to the war crimes charges against Muammar Gaddafi. While rape and other gender-based crimes are clearly defined in the Rome Statute, this could be the first time that they are to be featured prominently in a war crimes and crimes against humanity charge. This Guardian article urges the members of the NGO community, particularly those who were instrumental in the creation of the ICC and the incorporation of gender-based crimes to the Rome Statue, to ensure that the ICC follows through with these investigations.
By Martha Jean Baker
In historical conflicts, rape was considered to be one of the spoils of war. Victorious fighters saw rape of the women, wives, daughters, sisters and mothers of those they had defeated as an entitlement. They had earned it, and it was an effective way to begin the subjection of the defeated peoples.
Now we learn that the prosecutor of the international criminal court (ICC) may add rape to the war crimes charges against Muammar Gaddafi "on the back of mounting evidence that sexual attacks on women are being used as a weapon in the Libyan conflict". It's about time.
In the 20th century the nature of war and the "rules" of warfare began to change and be codified. The media played a role in raising awareness of the horrific and grotesque nature of war and what it had become. Newspaper front pages and television news allowed the innocent victims of warfare, civilians and non-combatants, to be seen and heard as never before. Something had to change. The public no longer had the stomach for this, if they ever had had.
After the second world war, the idea of a court that could try war crimes and crimes against humanity began to be discussed. In the late 1990s, after the fall of the Soviet Union and the end of the cold war, the idea was seriously addressed. The result was the ICC statute, which was passed with overwhelming support in Rome in July 1998.
Civil society came together as the Coalition for an International Criminal Court to lobby and work with delegates to ensure that a wide range of activities, many once seen as spoils of war, were included as war crimes and crimes against humanity. Women came together, working as the Women's Caucus for Gender Justice to make sure that women's bodies would no longer be an acceptable battleground. A wide range of gender-based crimes were included in article 7 (crimes against humanity) and in article 8 (war crimes) of the Rome Statute.
The ICC treaty called for a separate document to further define the elements of the crimes included in the statute. And once again civil society was there. Crimes, and particularly the gender-based crimes, were defined in the elements to leave little ambiguity or "wiggle room" for potential perpetrators of this crime to be prosecuted.
The most serious of the gender crimes included in the ICC is the crime of rape, but it is not the only one that can be prosecuted. The elements leave no doubt about what is meant by rape. There was no place left for ambiguity about what constituted consent. We worked hard to ensure the elements of the gender crimes were as strong as they could be.
We cheered. Our bodies would no longer become the battleground on which men could fight each other – right?
We have seen conflict after conflict discussed on these pages, in television, the internet, and all kinds of new media that were unknown until recently. Rape is front and centre of the horrific stories we read and see.
The ICC now has a number of "situations" it is investigating and prosecuting. Rape and other gender crimes, while we know they occur, have not featured widely in the charges so far. Those in front of the court try to hide behind the contention that they, themselves, never raped anyone and they, of course, did not order or condone such acts.
The prosecution wriggles and says that the evidence is not there or is too hard to find or witnesses will not come forward, "or or or", as reasons these crimes are not being prosecuted.
We read that Colonel Gaddafi of Libya may have been supplying his troops with Viagra and other such drugs and may have been encouraging, possible exhorting, his men to rape the women of the rebels and fight their battle in the time-honoured way, on and with the bodies of women.
We say: "No, enough!" If there is sufficient evidence available to write and broadcast such stories, then surely there must be sufficient evidence to bring charges in the ICC.
