Document Type

Article

Publication Date

2008

Abstract

INTRODUCTION: Several provisions in the Rome Statute of the International Criminal Court (ICC or the Court) indicate that the statute's drafters intended sexual violence and gender-based crimes to be given specific attention during the investigation of potential cases before the Court. For instance, Article 54(1)(b) requires that, in ensuring the "effective investigation and prosecution of crimes within the jurisdiction of the Court," the Prosecutor "take into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children."' The Rome Statute also provides that States Parties, which are responsible for nominating and electing the Court's judges, must "take into account the need to include judges with legal expertise on specific issues, including, but not limited to, violence against women or children." Similarly, the Prosecutor and the Registrar are to consider the importance of legal expertise on violence against women in hiring staff within their respective organs. At the same time, the Prosecutor must appoint "advisers with legal expertise on specific issues, including.., sexual and gender violence,"4 while the Victims and Witnesses Unit must include staff with expertise in "trauma related to crimes of sexual violence." Finally, in determining appropriate protective measures for victims and witnesses, the Court as a whole is required to take into account such factors as gender and "the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children.", These provisions, along with the enumeration in the Rome Statute of a broad range of sexual violence and gender-based crimes as war crimes and crimes against humanity, have been described as a response to decades of inadequate investigation and prosecution of rape and other forms of sexual violence at the international level. With respect to the structural provisions cited above in particular, one account of the Rome Statute negotiations includes the following observation: The experience of the [International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda], as well as the post-Second World War prosecutions under control Council Law No. 10, suggested that [the effective investigation, prosecution, and trial by the Court of sexual and gender violence crimes] would not necessarily flow automatically from the inclusion of crimes of sexual and gender violence in the Statute. A number of delegations at the PrepCom [(Preparatory Commission)] and at the Diplomatic Conference therefore attached importance to the inclusion of such special structural mechanisms ....

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