Can the International Criminal Court Deter Sexual and Gender-Based Violence?

• In Event: The Legal Face of International Collaboration

Abstract

In 2015, the UN reported that one in three women worldwide were the victims of gender-based physical or sexual violence. Sexual and gender-based violence (SGBV) is a global problem, affecting women and girls across geographic region, religion and socio-economic status. In recognition of the severity of this problem, many global institutions such as the World Bank , the UN Population Fund and the UN Secretary General have initiated campaigns designed to raise awareness about sexual and gender- based violence. Yet in spite of these campaigns the problem persists. Recent research on another global entity, the International Criminal Court (ICC) suggests that state commitment to this Court has important deterrent effects on a range of human rights violations, including torture (Appel 2016) and state violence (Simmons and Danner 2010). The founding document of the Court, the Rome Statute, also prohibits sexual assault and gender-based violence, making this the first global court to characterize these crimes as crimes against humanity. In 2008, the ICC pursued the first of three, high-profile indictments for SGBV as a crime against humanity making the Court the only global juridical institution interested in and capable of punishing those accused of these crimes.

The International Criminal Court is the world’s only permanent international war crimes tribunal, designed to take the place of ad hoc tribunals like those at Nuremburg and Tokyo. In 2012, Fatoua Bensouda, formerly a prosecutor from the Gambia, assumed the role of Chief Prosecutor of the Court. In 2014 her office issued its first white paper, “Policy Paper on Sexual and Gender Based Crimes” (OTP 2014). The publication of this policy paper marked the first time that the Court has taken up the issue of SGBV signaling that Bensouda intends to steer the Court and with it, the international community, toward justice for victims of sexual and gender- based violence. The significance of this shift in international human rights law cannot be understated. This shift has, “the potential to transform how gendered acts within genocide, mass atrocities, and war are prosecuted” (Oosterveld 2018, pp. 444).

Questions: As the ICC has moved into seeking justice for victims of SGBV, this project aims to assess whether these efforts have been successful. In other words, does state participation in the ICC (signaled by ratification of the Rome Statute of the ICC) reduce national rates of SGBV? Moreover, does the Court’s recent efforts to promote women’s rights translate into significant and meaningful innovation in national level anti-SGBV legislation, especially among the countries where the Court has pursued SGBV indictments?

Methodology: In this study we test whether state ratification of the Rome Statute of the International Criminal Court deters sexual and gender-based violence. We used an original dataset comprised of OECD data on gender-based violence, global ratification data for the Court and a variety of control variables from the literature on treaty ratification. These control variables are country- year variables and include level of democracy, income level, and participation in international INGOs among others. Our dataset spans the years 2002 (the first year that the ICC was first empowered to hear cases) through 2018 (the last year for which we can acquire data on SGBV).

Significance and Goals: This project can be placed within a larger tide of global change emphasizing the protection and promotion of women’s rights. Traditionally, war crimes tribunals have not prosecuted rape and sexual violence as crimes against humanity, treating them as unfortunate but natural occurrences during war. However, as a larger global movement to protect and promote the rights of women has gained legitimacy, these ideas have transformed what are understood as legitimate crimes for the Court to pursue. This is a new and critical shift in international human rights law and one that gives rise to an unparalleled opportunity to determine whether and how international law can impact human rights.

Author

• Heather M. Smith-Cannoy, Arizona State University