Entrenched Hegemony, Efficient Procedure, or Selective Justice?: An Inquiry into Charges for Gender-Based Violence at the International Criminal Court

Author:Suzan M. Pritchett
Position:J.D. Candidate, The University of Iowa College of Law 2008

J.D. Candidate, The University of Iowa College of Law 2008; M.A., University of Sussex, Institute of Development Studies, 2004; B.A., Grinnell College, 2001. I would like to thank the participants of the War Crimes Symposium held at the University of Iowa College of Law in February 2007 for their helpful discussion and critique of my topic. All opinions expressed herein are mine alone.

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-Who interprets the law is at least as important as who makes the law. . . .1

-The danger is that being placed on the agenda

does not confirm a place on the hierarchy. 2

I Introduction: The Woman's Face Of Africa's First World War

In a contemporary world rife with conflict-increasing disparities, ethnic tensions, struggles to gain control of ever-decreasing natural resources, intra- border and cross-border disputes, all resulting in an untold amount of suffering and death-the conflict in the Democratic Republic of Congo (DRC) is a familiar story.3 Since 1998, more than three million people have lost their lives in the conflict that has raged in the eastern regions of the DRC.4Commonly referred to as "Africa's First World War," the conflict in the DRC has had devastating consequences for both the country's development and its people.5

Contrary to the assumptions of many in the international community, women have played a major role in the conflict of the DRC, both as fighters themselves6 and as the victims of acts of gendered violence such as rape, Page 267 torture, abuse, forced labor, and sexual slavery.7 The rule of law in the country has deteriorated and along with it, the status of women in society. One witness from the DRC encapsulated the problem when saying, "[s]ince there are no longer any laws or rules [in the DRC], combatants pour out their anger and their madness on the women and little girls."8

Human Rights Watch recently has estimated that, in total, as many as 10,000 women and girls may have been raped by combatants in relation to the DRC conflict.9 In his report to the Security Council in 2004, the U.N. Secretary General noted that throughout the struggle "countless women were abducted and became 'war wives,' while others were raped or sexually abused before being released."10 U.N. monitors on the ground equally have been outraged by the violence inflicted upon Congolese women and children.11

It is virtually undoubted that violence against women in the DRC conflict has been systematic and widespread. Women, their bodies, their sexuality, and their gender-specific vulnerabilities have been used, with impunity, as weapons of war.12 Human rights organizations have extensively reported that soldiers have abused women and girls "as a part of their effort to win and maintain control over civilians and the territory they inhabited. They attacked women and girls as representatives of their communities, intending Page 268 through their injury and humiliation to terrorize the women themselves and many others."13

In addition, commanders have directed soldiers to use rape in order to secure scarce natural resources including food, water, and firewood. Such tactics create a climate of fear and intimidation in a cultural context where women primarily are responsible for both the production and provision of food-activities taking place largely in the public sphere.14 Perversely, the goal of systemic rape, as both women's human rights activists and rebel commanders alike have noted, is to "'end resistance' by instilling fear."15Ultimately, combatants and soldiers commit these acts of gendered violence with total impunity.

It is therefore indisputable: the conflict in the Democratic Republic of Congo has a woman's face. In addition to being at the root of atrocious violations of women's personal dignity and human rights, the consequences of war and its aftermath follow women back into their communities. Social rejection and economic exclusion are often the result of victimization, and for many young girls and women, reintegration into the community is never possible because of the stigma attached to sexual violence.16 Fear of reprisal and lack of faith in the judicial system keep women from pursuing prosecution or reparations.17

Given the gendered dimensions of the DRC conflict, one may question the law's role in bringing justice to the women of the DRC. How can the international community end the culture of impunity that surrounds the violations of women's rights in conflict situations? How might the recent inception of the International Criminal Court (ICC) serve as a source of justice and reconciliation for the women who have suffered as weapons of war and as a result of gender discrimination in the DRC conflict?

The case of Thomas Lubanga Dyilo, a leader of the armed political group Union des Patriotes Congolais [The Union of Congolese Patriots] (UPC),18provides an opportunity to analyze the prosecution of crimes of gendered violence under the recently-enacted Rome Statute of the ICC.19 Lubanga was Page 269 arrested on March 17, 2006 and transferred to The Hague under the jurisdiction of the Rome Statute of the International Criminal Court (ICC).20The case is the first ever to be tried at the ICC, and as such, all eyes in the international community, including those of Congolese women, are watching.21

This Note applies a critical feminist jurisprudential analysis to the application of the Rome Statute in the ICC case of Prosecutor v. Thomas Lubanga. First, in Part II, the Note engages in a post-structural feminist critique of international law, which lays the foundation for an analysis of the Rome Statute both as drafted and as applied. In Part III, the Note briefly explores the history of international prosecution for crimes of gendered violence and highlights the lessons learned by the global community leading up to the drafting of the Rome Statute. Part IV analyzes the historically responsive gender-specific provisions of the Rome Statute and applies them to the facts of the DRC conflict to reveal a prima facie case of crimes against humanity and war crimes against women.

Despite the presence of all elements of a prima facie case for jurisdiction under the ICC in the DRC situation, gender-specific charges have been sidelined in the first case to be tried, Prosecutor v. Thomas Lubanga. Consequently, Part V explores the fate of gender charges in this precedent- setting case and questions the extent of the Prosecutor's discretion and those implications for the checks and balances in the Rome Statute.

Revealing a prosecutorial strategy of selective justice and efficient procedure unchecked by the evolving jurisprudence of the Rome Statute, Part VI goes on to reveal the costs of selective justice for the women victims of the DRC conflict. Concluding that it is insufficient to have gendered crimes trigger jurisdiction without checks and balances that ensure the prosecution of crimes specific to women, the Note makes recommendations to all parties under the ICC to allow for the court to live up to its full feminist jurisprudential potential.

II Foundation For Analysis: Feminist Jurisprudential Challenges To International Law

In order to contextualize and evaluate the efficacy of prosecuting crimes of gendered violence in the DRC under the Rome Statute, it is important to consider the historical trajectory through which international legal norms and processes of decision-making have evolved. In her critique of international human rights law, Celia Romany advocates for a critical Page 270 feminist "destabilization agenda"22 in order to expose the particular socio- historical context of international law and its responses, or lack thereof, to violence against women.23

Romany notes that a feminist critique is essential to understanding how norms of legal accountability derive legitimacy from "historically-specific conceptions of justice, equality, and dignity."24 It is largely inevitable that these historical conceptions of justice, equality, and dignity continue to inform legal practice and decision-making, even under the Rome Statute, today.

In their seminal work, The Boundaries of International Law,25 Chinkin and Charlesworth offer the premise that "international law is a thoroughly gendered system."26 Thus, far from being a gender-neutral, normative moral order, international law and prosecution are products of a particular socio- historical context of elite men and Western-state supremacy. This Part explores the ways in which international law and international humanitarian law have addressed or failed to address women's experience of gendered violence in armed conflict. It postulates how this historical trajectory continues to inform and guide the application of the Rome Statue.

First, historically speaking, international legal institutions...

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