analysisBy Thobeka Mayekiso
For decades, women and girls in Africa have been victims of rape, sexual slavery and other brutal forms of sexual and gender-based violence. In a continent rife with various forms of conflict, such violence has frequently been used as a weapon of war.
The International Criminal Court's (ICC) Draft Policy Paper on Sexual and Gender-Based Crimes, released on 7 February 2014, ushers in new hope for addressing such crimes.
Although the international community has begun to address these atrocities with instruments such as United Nations Security Council (UNSCR) Resolution 1325, 1820 and 1888, success in prosecuting these crimes remains limited.
Could this draft policy become the much-needed new tool for effectively dealing with such crimes in international criminal justice?
Out of the eight cases that are currently before the ICC, six of these (the cases from Uganda, Darfur, Kenya, the Central African Republic, the Democratic Republic of Congo and Côte d'Ivoire) have brought charges that include various forms of sexual and gender-based crimes.
With these cases before the ICC, the office of the prosecutor (OTP) is to be applauded for the objectives stated in the draft policy, which outlines a commitment to pay particular attention to sexual and gender-based crimes in line with the Rome Statute of the ICC.
It aims to ensure effective investigation and prosecution of such crimes, from preliminary examination through to appeal. This is critical, as poor investigation undermines successful prosecutions.
The draft policy also recognises the many challenges and obstacles that stand in the way of the effective investigation and prosecution of sexual and gender-based crimes. Collecting sufficient evidence, for example, is a serious difficulty.
This was seen in March when the ICC made a judgment convicting Congo militia leader Germain Katanga for one crime against humanity and four war crimes, while acquitting him of other charges including crimes of rape and sexual slavery. It was found that there was not enough substantial evidence to prove that the crimes of rape and sexual slavery had been committed.
This was also the case at the International Criminal Tribunal of Rwanda (ICTR). While the Tribunal was able to convict Jean-Paul Akayesu for rape committed during the genocide in 1994, the prosecutors of the ICTR struggled to secure other rape convictions due to a lack of evidence.
The lessons from this experience are documented in the ICTR's manual for Best Practices for the Investigation and Prosecution of Sexual Violence Crimes in Post-Conflict Regions.
Effectively investigating and prosecuting sexual and gender-based crimes on the national and international level requires the participation of various parties, including the cooperation of states and the active participation of civil society.
The ICC's draft policy highlights the principle of positive complementarity (the need for states to take the lead in prosecuting crimes that come under ICC jurisdiction) in its approach to sexual and gender-based crimes. State parties to the Rome Statute are encouraged to carry out their responsibilities in dealing with these crimes.
However, the draft policy needs to further articulate how cooperation between the ICC and state parties on sexual and gender-based crimes will be tackled on a domestic level.
Unfortunately, non-cooperation and the lack of responsibility from state parties to the ICC continue to affect the prosecution of international crimes.
Another major challenge in Africa for victims of such crimes is access to justice, and the inability of judicial systems to prosecute complex crimes.
There are also instances where victims are faced with the stigma of sexual and gender-based crimes, and have limited access to support services from state institutions. This poses a challenge for the draft policy, as the ICC is a court of last resort.
Securing witnesses is another key issue. The recall of witnesses and their ability to relate relevant information may be affected by many factors including age, language, culture, physical impairment and a lack of effective national witness protections mechanisms.
Witnesses are linchpins in the successful prosecution of international crimes and prosecutors depend on accurate and complete testimonies.
The draft policy carefully outlines measures to be taken for witness preparation, the safety of witnesses, and their psychological wellbeing.
However the policy is limited in identifying the process it will follow to obtain witnesses for the trials. It might do well to refer to lessons learnt from the ICTR on witness preparation procedures.
On a related issue, the draft policy should be commended for including the issues of child soldiers and enslavement, because the participation of child soldiers has occurred in most cases of armed conflict - not only for combat, but also for sexual slavery. This is a common, persistent practice, and the draft policy actively highlights and enhances the gender aspect of this crime.
The final policy paper was due in March, but has not yet been released. It remains to be seen whether the policy will prove to be an effective tool in the investigation and prosecution of these international crimes.
The ICC cannot, however, be expected to tackle the problem alone. Addressing sexual and gender-based crime in warfare requires cooperation and accountability from states to effectively prosecute these crimes, and to help end the culture of impunity.
Thobeka Mayekiso, Consultant, Transnational Threats and International Crimes Division, ISS Pretoria