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Sexual Violence under International Law Overview From Nuremberg to the ICC

Sexual Violence under International Law Overview From Nuremberg to the ICC. Silke Studzinsky, Phnom Penh, 25 July 2011. International Military Tribunal (IMT) Based on the Charter adopted in August 1945 by USA, France, USSR and England;

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Sexual Violence under International Law Overview From Nuremberg to the ICC

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  1. Sexual Violence under International LawOverviewFrom Nuremberg to the ICC Silke Studzinsky, Phnom Penh, 25 July 2011

  2. International Military Tribunal (IMT) • Based on the Charter adopted in August 1945 by USA, France, USSR and England; • Crimes against Peace, war crimes and Crimes against Humanity; • Tried 21 accused leaders between November 1945 and October 1946; • No Crimes of sexual violence in the statute; • No female prosecutor or judge; no female participated in the drafting process of the Charter.

  3. 12 Major Trials • Based on the Control Council 10 Law (CCL10) dated 20 December 1945; • Against professional groups such as jurists doctors, business leaders, personnel of concentration camps; • The CCL10 was suspended in the West Zones on 31 August 1951, but applied in the East Zone until 1955. • For the first time rape is listed under Crimes against Humanity;

  4. International Military Tribunal for Far East (IMTFE) • Based on the executive decree of the Supreme Commander of the allied forces, General Mac Arthur; • Crimes against Peace, war crimes and Crimes against Humanity; • No crimes of sexual violence in the Charter, but in a few cases, rape was added in the indictment as a war crime under inhumane or ill treatment, and failure to respect family honor; • No female judge or prosecutor;

  5. Other Jurisprudence after WWIIin the Far East • In the aftermath of WWII several thousands of trials in the former occupied countries conducted; • Many are still under seal such as the Batavia trial (Indonesia) or hundreds of trials in China; • Rape case as CAH in the Chinese War Crimes Tribunal;

  6. International AD-HOC Tribunals: ICTY/ITCR • International Criminal Court for the former Yugoslavia (ICTY), based on UN Security Council Resolution 827, May 1993, located in The Hague, Netherlands; • Jurisdiction over genocide, war crimes and crimes against humanity in former Yugoslavia since 1991; • Rape is listed as Crime against Humanity;

  7. ICTY Jurisprudence Related to Gender Crimes • Recognizing sexual violence against females and males; • Prosecuting rape as a crime against humanity and as a war crime (grave breach of the Geneva Convention); • Recognizing by-standers and failing to punish or prevent sexual violence;

  8. International Criminal Court for Rwanda (ICTR) • Established by UN Security Council Resolution 935,November 1994, based in Arusha, Tanzania; • Jurisdiction over genocide, war crimes and Crimes against Humanity; • Rape is included into the statute as a Crime against Humanity and as a war crime, violation of the common Article 3 of the Geneva Conventions;

  9. ICTR Jurisprudence Related to Gender Crimes • First Genocide judgment (Akayesu case) September 1998; rape acknowledged as means of genocide; • Other forms of sexual violence acknowledged, such as forced nudity; • Determining that sexual violence is used as a means to inflict serious bodily and mental harm on extended group, such as family and community;

  10. Internationalized Court Special Court for Sierra Leone (SCSL) • Established through Agreement between the UN and Sierra Leone, January 2002; located in Freetown, Sierra Leone; • Jurisdiction over the most responsible for serious violations of international humanitarian law and Sierra Leone law, committed in the territory of Sierra Leone since 30 November 1996; • Power to prosecute war crimes and crimes against humanity and certain domestic crimes; • Domestic and international judges, prosecutors and registry;

  11. SCSL Jurisprudence Related to Gender Crimes • Statute included rape, sexual enslavement, forced prostitution, forced pregnancy and any other form of sexual violence of comparable gravity. • 3 of 4 cases addressed gender crimes of rape and sexual slavery. • For the first time forced marriage was acknowledged under Crimes against Humanity as an “other inhumane act”.

  12. International Criminal Court (ICC) • First permanent criminal court, based on the Rome Statute (treaty), became operational on 1 July 2002, currently 116 state parties; based in The Hague, Netherlands; • ICC is a complementary court that only has jurisdiction if national courts are not able or willing to prosecute; • Jurisdiction over genocide, war crimes and Crimes against Humanity, and soon aggression;

  13. For the first time more specific sexual crimes such as rape, sexual slavery, forced pregnancy, enforced prostitution, enforced sterilization, trafficking in women and children, including gender persecution and other forms of sexual violence of comparable gravity are listed. • Code of Procedure and Evidence set a precedent in how to deal with cases of sexual violence related to consent, prior or subsequent conduct of the victim and credibility.

  14. ICC Cases/Situation &Charges of Sexual Violence • Northern Uganda- ./. Kony and other LRA leaders, charged with war crimes and CAH, including rape and sexual slavery; • Eastern DRC- ./. Katanga and Ngudjolo, charged with war crimes and CAH, including sexual slavery and rape; ./. Mbarushimana, arrest warrant for rape (confrimation of charges hearing scheduled for 17-24 August 2011; • Central African Republic- ./. Bemba, charged with war crimes and CAH for rape and sexual slavery; • Darfur-./. Haroun and Kushayb, and President Al-Bashir, charged with war crimes, rape and sexual slavery as CAH and in addition Al- Bashir with rape as genocide; • Kenya- ./.Muthaura et al., rape as CAH .

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