Subject: [fem-women2000 128] ICC- Urgent Action Alert (fwd)
From: lalamaziwa <lalamaziwa@jca.apc.org>
Date: Sun, 30 Jan 2000 15:04:49 +0900
Seq: 128
---------------- Original message follows ---------------- From: Megan Burke <meganhap99@igc.org> To: gender-hap@igc.topica.com Date: Tue, 07 Dec 1999 07:40:41 -0800 Subject: ICC- Urgent Action Alert -- ***ALERT*** 1 December 1999: The Women's Caucus for Gender Justice urgently needs your assistance with the International Criminal Court (ICC) negotiations currently under way at UN Headquarters in New York. We are faced with major obstacles at this PrepCom as several countries are putting forth papers and positions which define many of the crimes against humanity in very limiting ways that do not take into account the realities of women in the situations likely to come before the Court. The negotiations at this PrepCom which began on Monday, November 29, and will continue through December 17, will focus on the definitions of crimes against humanity. In the past PrepComs, the definitions of war crimes were negotiated and included crimes of sexual violence. The negotiations produced definitions of these crimes that were satisfactory in some respects and very unsatisfactory in others. The U.S. presented their paper on elements of crimes against humanity (Art. 7 of the ICC statute) in the past PrepComs which still stands as a basis. Canada and Germany have submitted their proposals in the current PrepCom seek to be an alternative to the US paper, but do not measurably improve the situation. While this paper attempts to ensure consistency with the elements of war crimes as negotiated in the last PrepCom, we believe that the exercise of identifying elements of crimes against humanity has already been accomplished in the ICC statute and that there is no need to elaborate on these crimes in the elements. ** The Women's Caucus therefore urges the delegations to respect the ICC statute by adhering to the letter and spirit of the definitions of most of the crimes against humanity as elaborated in Art.7(2). The elements as contained in the Canadian/German proposals define many of the crimes in restrictive ways which would prevent the Court from being able to fully address the range of violence and violations to which women are commonly subjected. In addition, the Arab League will be submitting a proposal on the elements of crimes against humanity which in essence takes a position that certain crimes recognized as crimes against humanity in Art. 7(2) of the statute such as the general crimes of enslavement and confinement, and the crimes of sexual violence of rape, sexual slavery, forced pregnancy, enforced prostitution and other forms of sexual violence will not apply when these crimes are committed within the realm of family or if practiced as a matter of religious or cultural norms. Such restrictions and limitations will clearly affect the ability of the Court to prosecute violations of women's human rights, particularly crimes of gender and sexual violence as these often take place within the realm of family when committed in times of "peace." The best example is that it will put the current Afghanistan situation out of the ICC's jurisdiction. ** The Women's Caucus strongly urges delegations to resist any such move for their success will result in loss of many gains that were made in the ICC statute to obtain redress for violence against women. The Women's Caucus is also concerned that the U.S may be attempting to have a provision in the elements that exempt 'peace-keeping' forces from being prosecuted for crimes against humanity. There are also other key matters of procedure and structure: (1) The existing rule in the ad hoc Tribunals for Yugoslavia and Rwanda prohibiting prior sexual conduct should be adopted. (2) The rules should recognize harassment and discrimination as misconduct and provide for the positive measures to ensure that the personnel of the Court correctly represent geographical diversity, men and women and gender experts which are identified in the statute. ** We ask that you contact your foreign and justice ministers and urge them to support gender issues and to oppose the attempts by any country to limit the Court's ability to fully respond redress the crimes committed against women, which rightfully belong before the Court. A draft of a letter is attached below. Please fax or e-mail a copy of your letters to us at 212-949-7996 or iccwomen@igc.org. Please also email copies of your letters to the email address of your mission, which is pasted below. Dear , We are writing this letter because of our concerns regarding some developments at the UN negotiations of the Preparatory Commission (PrepCom) regarding the International Criminal Court which is currently meeting at the UN in New York. One major issue concerns the definitions or "elements" of crimes against humanity. Several countries are putting forth positions which define many of the crimes against humanity in very limiting ways and which are likely to prevent the Court from being able to fully address the range of violence and violations to which women are commonly subjected. On the one hand, the U.S. and Canada/Germany have submitted papers which define many of the crimes against humanity in restrictive ways. These crimes are already defined in art. 7(2) of the Rome Statute and these definitions should be simply converted into elements of crimes rather than elaborated upon. These proposals improperly include limitations or potentially limiting language-such as for enslavement, extermination, sexual slavery, and other sexual violence--which do not appear in the Rome statute. On the other hand, the Arab League countries have circulated a paper that would exclude crimes such as enslavement, confinement and the full range of sexual violence crimes when these crimes are committed within the realm of family or if the violence is practiced as a matter of religious or cultural norms. Any such attempt is wholly unacceptable as it would violate Rome and international law and must be met with firm rejection. We urge you to do the following: 1. Oppose attempts by any country including the Arab League to prevent the Court from redressing violence against women and other violations of women's human rights by restricting its jurisdiction from areas of family concern. Any such restrictions would be in violation of the Rome Statute which created the ICC and international human rights law, and are completely unacceptable. 2. Support articulation of the elements of crimes against humanity based on the definitions contained in art. 7(2) of the Rome Statute and without embellishment. For example, キ Enslavement and sexual slavery elements should be based on the definitions already contained in article 7(2) of the Rome Statute which states the essential element-that enslavement is the exercise of the power of ownership over another person. This has meaning in international law and would encompass the range of situations that amount to enslavement, reflect the true nature of the crime. The definitions of these crimes should not be limited to a few specific instances or types of enslavement/sexual slavery, such as purchasing or selling or forced labor. キ Extermination should also follow the Rome statute and not become a replica of genocide. キ "Other sexual violence" crimes need to encompass all sex crimes of >comparable gravity to the other non-sex-specific crimes within the statute. Otherwise, the Elements Annex will discriminate against crimes of sexual violence by setting a higher threshold for these crimes. The current proposal suggests that |"other sexual violence" must be of comparable gravity to "rape, sexual slavery" etc. This is also inconsistent with the war crimes text. 3. Oppose any efforts to exempt peacekeeping forces from the Court's jurisdiction by making exceptions for such personnel or forces in the definitions of crimes or under the guise of immunities. This runs contrary to the very important recent initiatives of the Secretary-General to make the peacekeepers subject to humanitarian law. We already know what happens when they are permitted impunity. 4. Support the rule prohibiting the sexual conduct of the victim from being admitted into evidence as it is irrelevant and discriminatory and has historically been used to shame the victim of sexual violence and call into question her credibility. The ICTY and ICTR Rules prohibited such evidence altogether; it's essential to incorporate their rule and rid judicial inquiries of this severe, unfair and unwarranted invasion of women's privacy