On Women's Initiatives for Gender Justice and the International Criminal Court: An Interview with Brigid Inder
WHRnet, August 2004

Brigid Inder has more than a decade's experience advocating and advising at United Nations conferences, and global negotiations, particularly in relation to the Cairo agreements and the Beijing Platform for Action. She has spent over 15 years working in NGOs in Australasia. She was a founding member of HERA, an international network of women's human rights and health activists. She has a background working on issues of young women's participation, leadership and activism. She has worked extensively on women's human rights and gender equality, particularly in the area of sexual and reproductive rights, including LGBT issues.

1. WHRnet: Could you please tell us what the role and vision of the Women's Initiatives for Gender Justice will be in the next years in relation to the ICC ?

Brigid Inder: The Women's Initiatives for Gender Justice is an international women's human rights organisation advocating for gender justice and working towards an effective and independent International Criminal Court. We act as a gender watch for the ICC and monitor the Court to ensure it is implementing the Rome Statute in the most expansive way possible.

The Rome Statute is groundbreaking in many areas - in its gender specific and inclusive provisions relating to the definitions of war crimes and crimes against humanity, the provisions on non-discrimination and persecution, the necessary gender and regional representation within the judiciary and staff of the Court, the historical recognition of the rights and participation of victims/survivors in the Court proceedings, and establishment of a Trust Fund for Victims to address reparations and compensation.
We work on the internal institutional issues of the ICC, as well as it's substantive work particularly its preparations for investigations, prosecutions, developing the role of the Trust Fund, protection and support for witnesses, their families and communities, and the rights of victims/survivors.

Institutionally, we advocate for a comprehensive gender policy for the Court and its employees-including flexible working conditions, staggered hours of work, and a sexual harassment policy. Moreover, we advocate for the creation of women's officer positions within the two human resources sections of the Court, to act as joint focal points for gender issues within the Court, and we are working with the ICC to address their responsibility towards gender balance, regional diversity and representation of the principal legal systems of the world amongst the staff of the Court.

We also work with feminists, women's networks, human rights organizations, academics, jurists, human rights lawyers and activists to raise awareness of the ICC, to build a movement engaging with the Court, and to promote global justice.
Since March we have been running a global recruitment campaign to inform women about key strategic positions within the Court. We have been working with international, regional and national women's organisations and networks, human rights organisations, professional associations, academics, practitioners, and community activists, to identify and encourage women to apply for positions within the ICC. We have particularly promoted ICC positions amongst NGOs in the African and Asian regions as these areas are under-represented in the staff profile of the Court.

The ICC said recently they have noticed a significant increase in the number of women applying for positions and an increase in applicants from the Africa region. There continues to be few applications from Asia where awareness of the ICC is comparatively low, and Eastern Europe is also under-represented at the Court. We will monitor the appointments at the ICC to ensure that the increase in applications leads to an increase in appointments.

WHRnet: What are some of your areas of Focus?

Brigid Inder: We have specifically focused on the Deputy Prosecutor position. This is a crucial position within the Office of the Prosecutor, as Head the Prosecution Division. Over recent months we have worked with many international, and regional women's networks and individuals, to ensure there were a number of strong applications from suitable women candidates for this position.
In the end 7 of the 9 candidates short listed for interviews were women, mostly from Africa.

Amongst the three final candidates selected for the position, two are women. The Deputy Prosecutor will be elected from this group by the Assembly of States Parties, September 6-10, in The Hague.

We are putting a lot of effort into the recruitments of the Court because it is essential that women, aware of and committed to gender equality, are appointed to decision making positions and have structural power within this international institution. If women exercise power within the Court, then the Court will exercise its power for women.

In terms of the substantive work of the Court, we have been advocating for gender training for investigators, interpreters and staff working with victims and witnesses. Currently, we are preparing to conduct this training to support gender competence amongst ICC investigators so that sexual violence and gender-based crimes are identified, and investigated in a non-discriminatory and effective manner. When field investigators are not sufficiently gender competent, investigations are ineffective, crimes of sexual violence are commonly misunderstood, or dismissed as too labour intensive and difficult to prove. The absence of gender competence also poses a threat for victims/survivors as it risks re-traumatisation, and alienating victims and witnesses.

We are reminding the Court that their work must recognize the agency of victims and witnesses in participating in the judicial process, and in surviving often horrific and prolonged violence. The pursuit of justice through the ICC must belong to victims and survivors of the crimes and their communities, as much as to the Court and the global community.

2. WHRnet: In what ways do you think the ICC can be used by the international women's movement to advance women's human rights ?

Brigid Inder: The ICC provides a unique opportunity for women's movements because it represents a huge leap forward in both international humanitarian law, and human rights. For the first time in history, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and other forms of sexual violence have been included in the definitions of war crimes and crimes against humanity. This means the legislative and procedural framework for the ICC recognizes women, it gives visibility to the crimes committed against women during conflict and war, and it has made a commitment to prosecute those responsible (1.)

As the first permanent international criminal court, the ICC has an unprecedented opportunity to develop important international jurisprudence in relation to sexual violence, and gender based crimes, and to develop case law which brings international consistency to the prosecution and conviction of such crimes. The ICTR (2) and ICTY (3) both established ground-breaking jurisprudence in this area, although overall there were relatively few and at times inconsistent convictions, considering the scale of gender-based crimes committed during the war in the Balkans, and the conflict in Rwanda, and the length of time the Tribunals have been operating (10 years).

International case law must demonstrate that violence against women during war and conflict is recognized as amongst the gravest of offenses committed during armed conflict, and those who commit such crimes should no longer count on impunity. By implication the jurisprudence of the ICC raises questions about how violence against women during peacetime can continue to be ignored and justified by governments as just another unsolvable issue.

It is unclear what relationship the ICC will have the United Nations Treaty bodies, agencies including the UN High Commission for Human Rights and Special Rapporteurs, but there may be opportunities for women's organizations and human rights actors to utilise advances in international humanitarian law, and human rights norms to explore new answers for old questions.

The provisions within the Rome Statute of the ICC are relevant in many ways and to many constituencies including, but also beyond, the women's movements. It is relevant through the definitions of the crimes (genocide, crimes against humanity, and war crimes), and relevant through the intersecting and overlapping areas of our activism at local and regional levels.

A couple of examples.

LGBTI
The definition of persecution includes persecution against any identifiable group or collectively on political, racial, national, ethnic, cultural, religious, gender ... or other grounds universally recognised as impermissible under international law. This provides a potential framework for addressing violence committed against lesbian, gay, bisexual, transgender, and intersex people and our movements who in many parts of the world are targeted as an identifiable group or collectivity for violence, hate crimes, torture and murder because of their gender identity and sexual orientation. Much more needs to be done to explore the ICC's relevance to the promotion of human rights in relation to gender identity and sexual orientation, including the need for research and documentation on the nature and extent of violence, if any, specifically targeting LGBTI during civil unrest and armed conflict.

HIV/AIDS
Sub-saharan Africa holds 10% of the world's population, and two thirds of people living with HIV/AIDS, (approximately 25 million people) 4. It is also the site of many long-standing conflicts. In other words some countries with the highest HIV prevalence, are involved in some form of civil or international war. Figures suggest as many as 13 of the 17 countries with the highest HIV prevalence are engaged in an armed conflict. What does this mean for countries of the sub-region facing both conflicts and epidemics ? What does it mean for women ? What will it mean for the work of HIV activists and service providers, human rights defenders and legal advocates?

We know that sexual violence increases HIV transmission, that increasingly women are becoming HIV positive in conflict areas as a result of rape during war time, and we know that HIV compromises the immune system in ways that will make physical recovery from rape and other forms of sexual violence difficult and long term. What we don't know is whether people living with HIV/AIDS are targeted for violence during armed conflict, whether the threat of HIV infection is being used to terrorise communities, or if HIV is being used as a means of genocide through the deliberate transmission of HIV with the intent to destroy in whole or in part, a specific national or ethnic group.

When we bring all these factors together in a situation where hundreds of thousands of people are killed, where sexual violence and rape is widespread and systematic, women are subjected to forced pregnancies and sexual slavery, and children are forced to kill family members and are abducted into militia groups, it becomes very clear that our activism will overlap in complex, challenging, and uncharted ways. 'Identity' activism has little currency in these complex environments. Women's organizations working towards gender equality may also become strong advocates for ethnic and racial equality, HIV activists may become committed children's rights advocates, peace-builders and legal activists may also become tenacious advocates for women's human rights. And all these movements may become advocates with the ICC to make sure it exercises it's jurisdiction in the most comprehensive way possible, and brings to justice those ultimately responsible for the worst crimes committed during conflicts and wars.

3. WHRnet: How is the WIGJ going to ensure that the first case before the ICC (Congo) takes into account the gender perspective in terms of investigating and prosecuting gender and sexual crimes, and in terms of following the gender rules of procedure?

Brigid Inder: We are launching several strategies to ensure the first situations investigated by the Court are gender inclusive.
Firstly we are working with the Court to establish a Gender Legal Advisor position mandated to oversee issues relating to gender across all functions of the Office of the Prosecutor. Experience tells us that in the absence of a senior decision-making position clearly mandated with this role, sexual violence and gender based crimes are marginalized, overlooked, and under-investigated.

In addition to the gender training for investigators, in the coming months we will be developing a framework, which we hope the ICC will adopt, identifying the components necessary to ensure sexual violence and gender based crimes are effectively investigated and prosecuted. At present the ICC does not have a gender-specific strategy to ensure sexual violence and gender-based crimes are systematized at every stage. This is one of the most urgent priorities from our perspective especially as the ICC has already begun preliminary investigations on the ground in Uganda and is expected to begin investigations in the Democratic Republic of the Congo (DRC) in the next few months.

We are aware few models for such a strategy exist. Neither of the ad hoc tribunals (ICTR and ICTY), nor the UN Special Court in East Timor have developed cohesive policies nor consistent investigative and prosecutorial strategies for sexual violence and gender-based crimes.

Despite this, the ICTY and ICTR both established significant jurisprudence - the ICTY was the first international tribunal to indict individuals solely for crimes of sexual violence against women, and to rule that rape and enslavement were crimes against humanity. The ICTR was the first international court to punish sexual violence in a civil war, and the first time rape was found to be an act of genocide.

Extraordinarily, this case law was developed without a systemic approach by the Tribunals and the UN Special Court to sexual violence and gender-based crimes, without consistent investigatory and prosecutorial strategies, and devoid of committed efforts by the Court to address these issues in a comprehensive and institutionally driven manner.

What has been achieved through the ad hoc tribunals is largely due to the extraordinary efforts of individual women, as legal activists, investigators, advisors, prosecutors, and judges who on their own initiatives pursued charges of rape and sexual violence. In many instances despite overwhelming evidence of rapes, charges were only included in prosecutions because individual women intervened. That so much has been achieved is a testament to the tenacity of a relatively small group of women.

We hope that the gender-inclusive investigation framework will be adopted by the ICC, will lead to successful convictions, and that ultimately the work of the Court will help set international standards for gender justice.

WHRnet: Are you working with National and/or Regional groups?

Brigid Inder: We are also working with national and regional networks and women's human rights to increase awareness of the ICC in conflict situations and to find ways to assist women victims and survivors to access the Court for justice. We want to support the work of local women's groups and organizations in conflict areas who are developing strategies to end impunity for sexual violence through their domestic judicial systems and complementary processes.

For example in Uganda and the DRC, we will work to provide local women's and human rights organizations with information about ICC investigations, developments, the Courts obligations, and what local NGOs can realistically expect. Through feedback from field partners, we will raise issues with the Court if local women's organizations feel the field presence is inadequate, key incidents are ignored, or there is insufficient protection for witnesses and support for victims/survivors. Finally, we will facilitate direct contact with the ICC so women's groups can provide their analysis of the local conflict, political issues, the status of women, appropriate liaison with communities, and other factors the Court needs to take into account for it's work to be effective in each of these specific conflicts.

4. WHRnet: What do you think women's organizations should do to ensure the implementation of the ICC at national levels?
Brigid Inder: There are many concrete ways local women's networks, movements and human rights organizations can support the globalisation of justice through the ICC.

NGOs can advocate for the ratification of the ICC by their Government. 94 countries have ratified the ICC 5. The USA has 92 bi-lateral agreements with nations around the world exempting their soldiers and military personnel from ever being held accountable to the ICC. Support and opposition for the Court is both strong and qualified particularly when you consider some of those with bi-lateral agreements with the USA have themselves ratified the ICC. Universal ratification is very important.

If governments have ratified the ICC, then women's organisations can work on national implementation of the ICC. There are many possibilities if we take a lateral approach to the relevance and meaning of the ICC for national justice and human rights movements. Obviously national implementation relates directly to relevant domestic legislation for the crimes annunciated in the Statute - genocide, crimes against humanity, and war crimes.

But implementation is also an opportunity to remind our governments of their responsibility in not only responding to violence against women once it has occurred, but their responsibility to prevent violence against women whether in wartime or peace.

Creative implementation could provoke legislative reform, and a review of the definition of rape so it is broad and inclusive not, as in many countries, a narrow definition relating only to penetration with a sexual organ, excluding many instances of rape where other instruments and objects are used. Implementation may be used to create the right political moment to agitate for policy changes and more funding for anti violence measures. Women's organizations could seek changes in policing procedures and advocate for sexual assault training for the police so they are able to identify and respond to domestic violence more effectively. National implementation may provide the opportunity to demand more funding for rape crisis centres, women's refuges, sexual and reproductive health services, and women's health centres who work with victims and survivors of gender based violence.

In 2002 States Parties of the ICC elected 18 judges to the ICC, 7 of whom are women. These judges serve a range of 3-9 year terms, which means the first election or re-election of 6 judges will be in 2005. It is crucial that women's organizations mobilise next year to monitor their governments process for the nomination of judges to the ICC, we need to ensure women are nominated, and also lobby governments to make sure they vote for women during the judicial elections. We know from national experiences, that a conservative judiciary makes crimes of rape and sexual violence against women even more difficult to prosecute and convict.

Much more work needs to be done to consider the scope of national implementation, and we hope to work closely with national women's organizations to explore the use of the ICC to support local efforts addressing violence against women.

Sources
1 Historically, rape and sexual violence against women during armed conflict were considered part of the spoils of war, and categorized as an offense against a woman's honor, or the honor of her family, community, or ethnicity.
2 International Criminal Tribunal for Rwanda
3 International Criminal Tribunal for the Former Yugoslavia
4 According to the 2004 Report on the Global AIDS Epidemic, (UNAIDS), HIV epidemics in many sub-saharan countries are now generalized, meaning HIV is prevalent throughout the general population, it is not confined to specific communities or populations at higher risk (e.g sex workers and their clients, injecting drug users, men who have sex with men). In the sub-Sahara region, 57% of adults living with HIV are women and 75% of young people living with HIV are young women and girls.
5 For a full list of ratifications of the ICC go to: http://www.iccnow.org/countryinfo/worldsigsandratifications.html

This interview can be found at http://www.whrnet.org/docs/interview-inder-0408.html