A conversation with: Regina Paulose

In a virtual interview, accompanying the release of Dr. Zawati’s new book, Fair Labelling and the Dilemma of Prosecuting Gender-Based Crimes at the International Criminal Tribunals by Oxford University Press (2014), we discuss the prosecution of gender based crimes in the international legal system. Dr. Zawati explains below that the lack of accurate description of gender-based crimes in the statutory laws of the international criminal tribunals and courts infringes the principle of “fair labelling,” lead to inconsistent verdicts and punishments, and constitutes a barrier to justice. As a result, sexual violence in wartime settings should be prosecuted separately as crimes in themselves, not as a subsection of war crimes or crimes against humanity.

 

Dr. Hilmi Zawati, an international criminal law jurist and human rights advocate, is currently the President of the International Legal Advocacy Forum (ILAF). He has studied law at different American, Canadian, Middle Eastern, and African universities, and earned several law degrees, including the prestigious doctor of civil law (D.C.L.) in international comparative law (McGill), M.A. in comparative law (McGill), Ph.D. in international energy political economics (CPU), M.A. in Islamic law of nations (Punjab), Post-Graduate Diploma in public law (Khartoum), and LL.B. (Alexandria-Beirut campus).   Before Joining ILAF, Dr. Zawati has taught numerous subjects at both Kuwait University and Bishop’s University over the past thirty years, and been a prominent speaker and author on a number of hotly debated legal issues. Dr. Zawati has an accomplished body of trans-disciplinary scholarship. His present primary research and teaching areas are: public international law; international criminal law; international humanitarian and human rights law; international gender justice system; international environmental law of armed conflict; and Islamic law of nations (siyar).  Dr. Zawati has been a committed human rights activist over the last three decades and has actively advocated human rights of wartime rape victims throughout the world ever since the first reports of war crimes during the Yugoslav dissolution war of 1992-1995. He is the author of several prize-winning books on international humanitarian and human rights law, including his recent book The Triumph of Ethnic Hatred and the Failure of International Political Will: Gendered Violence and Genocide in the Former Yugoslavia and Rwanda (Edwin Mellen Press, 2010). Dr. Zawati’s most recent work is his book Fair Labelling and the Dilemma of Prosecuting Gender-Based Crimes at the International Criminal Tribunals (Oxford University Press, 2014).

Congratulations on your recent publication! Could you tell us about the central legal argument of this book? And why it is important to be addressed?

Please allow me to thank you for inviting me to this interview, for your interest in my new book, and for giving me the opportunity to address certain questions that you might raise about challenges of prosecuting gender-based crimes at different international criminal judicial bodies. This book argues that the abstractness and lack of accurate description of gender-based crimes in the statutory laws of the international criminal tribunals and courts infringe the principle of fair labelling, lead to inconsistent verdicts and punishments, and constitute a barrier to justice. Accordingly, this work deals with gender-based crimes as a case study and with fair labelling as a legal principle and a theoretical framework.

In response to the second part of your question, I believe that this topic is both critical and timely, and contributes to the existing scholarship in many different ways. First, it is the first legal analysis to focus on the dilemma of prosecuting and punishing wartime gender-based crimes in the statutory laws of the international criminal tribunals and the ICC with reference to the principle of fair labelling. Second, this inquiry emphasises that applying the principle of fair labelling to wartime gender-based crimes—by separating crimes from one another and labelling them in order to reflect their degree of wrongfulness and real gravity—would help the tribunals in delivering fair judgements and breaking the cycle of impunity for these crimes. Third, while most scholarly works today focus on the latest developments and achievements of international gender justice, no study has yet addressed the shortcomings of the international criminal system in this area with the detail or comprehensiveness that it warrants. Fourth, this study affirms that rape and other forms of sexual violence in wartime settings should be prosecuted separately as crimes in themselves, not as a subsection of war crimes or crimes against humanity. Subsuming gender-based crimes under other crimes means that they must be prosecuted as part of the latter, which requires additional elements to be added. For example, to prosecute rape as a crime against humanity, it must be systematic and perpetrated on a large scale against a civilian population. In this case, isolated and individual wartime sexual assaults would fall outside of the tribunals’ jurisdiction. And finally, this book contributes to the construction of a legal literature that would enhance the international criminal tribunals in their efforts to reformulate and amend their basic laws, a substantial step towards effectively identifying and prosecuting gender-based crimes in wartime settings.

How do you define the term fair labelling?

Fair labelling is originated in the scholarly works of contemporary English criminal law jurists. Andrew Ashworth, currently professor of English law in the University of Oxford, laid the foundation for this principle in the early 1980s. As a legal principle applicable to the legislature, it requires that crimes be separated from one another, categorized, described, and labelled in order to reflect their degree of wrongfulness and relative gravity. In other words, the description of an offence should match both the wrong done and the moral blameworthiness of the offender. Accordingly, specifying the names of crimes without providing a clear technical definition and label for each of them would undermine the judicial process. On this basis, this book asserts that the principle of fair labelling provides the most persuasive and comprehensive justification for the impulse to materialize gender-based crimes in response to their perceived lack of description, categorization, and labelling in the statutory laws of the tribunals, which leads in turn to inconsistent verdicts and punishments, and inadequate prosecution of such crimes.

One may argue against the applicability of fair labelling, as a domestic legal principle, to international criminal law, what are your thoughts?

Thank you for raising this important issue! Technically speaking, legal principles and laws applied in domestic law do not exist in international law, except those principles that lie within the legal sources listed in Article 38(1) of the Statute of the International Court of Justice, which explicitly views “the general principles of law recognized by civilized nations” as a source of international law. Moreover, it is worthwhile to mention that the trial chambers in the ICTY and the ICTR—due to the lack of a comprehensive technical definition of rape in international criminal law—had turned to the classical definition of rape in national laws to develop an appropriate definition that would address the needs of wartime rape victims: another indication of the possibility of applying the principle of fair labelling internationally. However, reading this book would reveal that the applicability of the principle of fair labelling in international criminal law is within the safe bounds of the legal sources mentioned in the above article and does not lead to controversial dogmatic problems.

Focusing on the dilemma of prosecuting gender-based crimes at the international criminal tribunals in your book, could you tell us about the main shortcomings that affected the international criminal tribunals’ capacity to respond adequately to gender-based crimes in the last two decades?

Despite the incredible achievements and developments in the ad hoc international criminal tribunals’ gender-specific jurisprudence, these judicial bodies have continuously failed to respond adequately to gender-based crimes committed during the 1990s armed conflicts in the former Yugoslavia, Rwanda, and Sierra Leone, and other war-torn countries. Although wartime rape and other forms of gender-based crimes were utilized systematically on a large scale by drafting thousands of women and girls in the territory of former Yugoslavia, Rwanda, and Sierra Leone for systematic mass rape and various sexual assaults, the tribunals delivered only symbolic gender justice by convicting just a few wartime rape perpetrators or those who were responsible for using sexual violence as an integral part of the war.

However, besides the abstractness and lack of accurate description of gender-based crimes in the statutory laws of the international criminal tribunals, the book underlines the following shortcomings, which had curtailed their capacity to respond adequately to gender-based crimes:

First, despite the pervasiveness of rape and other sexual violence, the tribunals failed utterly to prosecute these crimes from the beginning of their mandate, which in turn damaged their credibility to deliver fair, effective, and timely justice. I support this argument in detail in my book.

Second, the tribunals failed to deal with gender sensitive matters whether at the investigation or at the trial stage. The lack of professional female investigators made many rape survivors refrain from coming forward to talk or complain, affecting as a result adversely the Tribunals’ ability to fulfil their mandate, prosecute gender-based crimes, and bring justice to victims.

Finally, the other shortcoming that has impeded the tribunals’ ability to adequately respond to gender-based crimes is the delays in prosecuting and judging the perpetrators. For example, despite the landmark decision of Akayesu, the ICTR took four years to prosecute and convict him. Similarly, it took the tribunal approximately one decade to prosecute and convict Nyiramasuhuko. These delays also violate the principle of fair labelling, which preserves the defendant’s right to efficient and timely justice, as well as sending the message to rape survivors that justice is still out of reach.

Do you think there is a role for civil society organizations in gender based prosecution?

Since the news of the first rapes that took place in the early 1990s during the Balkan War, women’s and human rights groups had played a prominent role in calling for the criminalisation of rape and other forms of sexual violence in international legal instruments. They have achieved a remarkable success in changing the landscape of international gender justice. Indeed, feminist legal scholars have played a prominent role in surfacing gender-based crimes and developing the international criminal justice system in the last two decades, whether by calling for gender justice and improving the performance of the above tribunals in prosecuting and punishing gender-based crimes, or by pressuring the drafters of the Rome Statute of the ICC, before or during the 1998 Diplomatic Conference, to incorporate gender-based crimes in the provisions of the statute. Furthermore, feminist theorists and legal scholars have increased the world’s awareness and understanding of the function of rape, as a weapon of war, as a tool of ethnic cleansing, as an act of genocide, and as a means of destroying the culture and the infrastructure of an opponent’s society.

Practically, when wartime rape was not among the charges listed in the first series of indictments at the ICTR, including that of Akayesu who was the first accused to appear before the Tribunal, it is  feminist legal scholars and human rights activists who applied enormous pressure on the prosecutor to add gender-based crimes to indictments. A case in point is the 1996 Akayesu indictment: despite the fact that rape and other forms of sexual violence spread throughout Rwanda during the 1994 genocide, particularly in the Taba Commune where Akayesu served as  mayor, the latter’s first indictment contained no rape charges. However, on the basis of the staggering information revealed by different human rights organizations, particularly Human Rights Watch’s famous report “Shattered Lives” on the horrific rape crimes committed against Tutsi women, the Tribunal received an Amicus Brief and several appeals submitted by activists from human rights organizations, feminist legal scholars, and worldwide international human rights lawyers, including the interviewed. The Amici petitioned the Trial Chamber to exercise its authority under the Tribunal’s Statute and Rules of Procedure and Evidence to call upon the Prosecutor to amend the indictment against Jean-Paul Akayesu to include charges of rape and other forms of sexual violence as crimes within the jurisdiction of the Tribunal. Consequently, the then Chief Prosecutor Louise Arbour amended the indictment to include allegations of sexual violence and charges of rape and other sexual crimes against the accused under the provisions of the Statute of the ICTR.

Yet, organizations of civil society could play an essential role in increasing the awareness of the civil society of the brutality of wartime gender-based crimes, encourage victims to come forward and speak out, and participate in the system, such as participating as amicus curiae in the ICC case proceedings under Rule 103(1) of the ICC Rules of Procedure and Evidence. Moreover, they can make put pressure on governments to ratify the Rome Statute of the ICC and call upon member states to request the  a Review Conference under Article 132(2) of the Rome Statute to amend the latter by reconceptualising gender-based crimes, separate them one from another, categorize, describe and label them in order to reflect their degree of wrongfulness and relative gravity. They can also affirm that rape and other forms of sexual violence in war settings should be prosecuted separately as a crime in itself, not as a subsection of war crimes or crimes against humanity.

In Lubanga, the ICC has failed the victims of conflict-related gender-based crimes, and consequently, women’s groups declared that as a “black day” for women’s rights in the Court. Who or what was behind this failure?

When the Pre-Trial Chamber issued a warrant of arrest for Lubanga in February 2006, feminist legal scholars and human rights organisations criticized the prosecutor for not including charges for gender-based crimes in the indictment, despite a wealth of information submitted by the above bodies on alleged crimes of rape and other forms of sexual violence conducted by Lubanga’s militia. The indictment, which was remarkably narrow, charged Lubanga under the provisions of the Rome Statute, in his capacity as the leader of the Forces Patriotiques pour la Libération du Congo, with the crimes of enlisting and conscripting children of both gender under the age of fifteen and using them to participate actively in hostilities against their communities, as well as against other ethnic groups living in the Ituri region. Because of pressure made by human rights groups, the prosecutor filed a request to undertake further investigations at a later time, so that he might add more charges, particularly gender-related crimes, if there was enough evidence. Later on, he decided to suspend further investigations, arguing that the time provided to complete them and amend the indictment was not enough.

Women’s Initiative was disappointed by the prosecutor’s decision and argued that his failure to include charges for gender-based crimes in the indictment was due to his ineffective investigations and lack of dedication. They asserted that this decision must be seen as a “black day for women’s rights” in the court, and a grievous omission to be addressed. Indeed, the failure of the court to address the victims’ sufferings by silencing them and restricting their participation in the proceedings, the court’s failure to add charges of sexual violence to the indictment, and the absence of an effective mechanism to hold Lubanga accountable for gender-based crimes had disappointed the victims and undermined the court’s legitimacy to deliver justice to future victims of wartime sexual violence.

It looks like the international community is doomed to repeat its mistakes. What mechanisms could be utilized to effectively prosecute gender-based crimes committed in the Arab Spring countries?

Before addressing this question, I must say that it is shameful that the international community has successfully concluded an agreement with the Syrian regime to remove its chemical weapons in a very short period of time while egregiously failed to stop war and save the lives of millions of innocent children, women, and elderly people throughout Syria in the past three years!  It is unacceptable to invite the regime to peace talks in Geneva while its air forces were systematically carpeting Aleppo and the besieged towns of southern Damascus with barrels of explosives, killing more than 1,870 civilians during the peace talks only, where more than 70% of them have been killed indiscriminately. It is disgraceful that the international community stays passive while thousands of Syrian women have been brutally raped and sexually abused in detention, at home, and at checkpoints. Several reports also indicate that the situation for Syrian women and girls is frightening. Many families have fled the country to protect their women from rape, which was employed as a weapon of “sectarian cleansing”—a new conflict-related crime to be added to the long list of crimes against humanity, embodied in Article 7 of the Rome Statute of the ICC.

The international community is obligated under several principles of law to stop war in Syria and bring perpetrators to justice, including jus cogens, responsibility to protect (R2P), erga omnes, and aut dedere aut judicare. However, there are three interrelated mechanisms to combat the culture of impunity, and bring perpetrators of gender-based crimes committed in recent and ongoing civil wars in the Arab Spring countries to justice:

On the international level, the international community should make reform in the international criminal justice system, particularly amending the Rome Statute. Besides the required technical description of gender-based crimes as crimes against humanity and war crimes incorporated in articles 7 and 8 of the Rome Statute, amendments should also be made to Article 13(b) to transfer the authority of referring such crimes to the prosecutor of the ICC from the UN Security Council to the UN Human Rights Council. In the past three years, the Security Council has utterly failed to pass a resolution to stop war and to refer the situation in Syria to the prosecutor of the ICC for the lack of political will on the part of some key players in the Council. Russia and China have vetoed three UN Security Council resolutions on Syria, preventing several attempts by the UN Security Council to take a decision that might have put an end to the war crimes and crimes against humanity perpetrated against Syrian civilians. On the other hand, the ICC prosecutor should be granted more proprio motu powers to investigate gender-based crimes based on information received from individuals, groups, States, intergovernmental or nongovernmental organizations.

On the local level, transitional governments, e.g., the Libyan government, should immediately declare and recognize wartime rape survivors as heroines, as they were targeted and assaulted during the Libyan people’s battle for liberation and democracy. Rape casualties should be considered as wounded combatants rather than mere victims of sexual violence, as veterans of a just war rather than a shameful statistic. This will help them speak out, the matter that would increase prosecutions, and consequently combat the culture of impunity. Furthermore, governments, in general, should also incorporate crimes listed in Article 5 of the Rome Statute in their criminal codes in order to exercise its universal jurisdiction over those responsible for wartime gender-based crimes. For example, in July 2000, Canada has adopted the Crimes against Humanity and War Crimes Act, and accordingly, a Quebec courtwas able to prosecute Désiré Munyaneza, a Rwandan businessman, in October 2005. Four years later, in October 2009, he was found guilty of crimes of genocide, crimes against humanity and war crimes, including wartime rape, and had been sentenced to life in prison with no chance of parole for 25 years. Finally Syrian and Libyan communities should treat victims of wartime sexual violence gently. It would be unfair to re-victimize those women who lost their self-esteem and integrity.

Special thanks to Dr. Zawati for his time. Again, if you are interested in learning more, please purchase the book (It is now available at Oxford University Press or Amazon Booksellers) or if you would like to read more of  Dr. Zawati’s work it can be found here.