There’s no explicit definition of what makes violence “sexual” when it comes to international crimes: the International Criminal Court’s founding texts have no precise definition. Earlier this year, the Hague-based Women’s Initiative for Gender Justice initiated a campaign to help shape new victim-centric guidance to (international) criminal law practitioners on what makes violence “sexual”. The ‘Call It What It Is’ campaign is driven largely by input from survivors of sexual violence, the campaign seeks to advance the accountability agenda. Alix Vuillemin Grendel, Senior Advocacy Adviser for WIGJ recently spoke to journalist Joyce J. Wangui on the importance of this campaign and how it will impact the legal framework on sexual violence at the ICC. The two met during a symposium in Uganda –Sexual Violence: Advancing the Agenda? organized by the Refugee Law Project, where, among other things, they looked at on the language gaps found in criminal law in addition to discussing the diversity of forms of sexual violence not captured by the law.
Joyce J. Wangui: What prompted your campaign and how will it help in advancing the sexual violence agenda of both response and prevention?
Alix Vuillemin Grendel: Our campaign was prompted by the recognition that there is a gap in the ICC’s legal texts. While the Rome Statute is the first international criminal law instrument to expressly include crimes of sexual violence, it does not sufficiently define the term “sexual violence” nor does it provide examples of acts, which might be captured by the crime of “any other form of sexual violence of comparable gravity.”
Joyce J. Wangui: Could you be more specific?
Alix Vuillemin Grendel: To be more specific on the legal gap, there are six crimes listed in the Rome Statute categorized as sexual violence: Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and ‘any other form of sexual violence of comparable gravity’ both as war crimes and crimes against humanity. (Also, sexual violence can also be a constitutive act of genocide).
To understand what those six crimes can be, one must turn to the ICC Elements of Crimes. Indeed, the ICC Elements of Crimes are to assist the Court in the interpretation and application of the Rome Statute articles on crimes against humanity, war crimes and genocide. The Elements of Crime define what constitutes an act of rape, forced pregnancy, and enforced sterilisation.
With regard to the crimes of sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable gravity, the only guide given by the Elements is that an “act of a sexual nature” must have been committed. However, it does not provide examples or guidance as to what could constitute an “act of a sexual nature”.
This lack of guidance in the ICC legal texts highlights: A lack of clarity about what makes violence sexual; and a disparity between how sexual violence is – and will be – deliberated in courts and how the violence is perceived and experienced by victims.
Joyce J. Wangui: What sort of agenda is your campaign pushing?
Alix Vuillemin Grendel: We started our Call it what it is Campaign, and decided to call on the collective strength of civil society to give survivors of sexual violence in conflict a voice in shaping a contemporary, victim-centric and contextually relevant guidance, through a Civil Society Declaration, to international and national criminal law practitioners on what makes violence “sexual”. This Declaration aims to be a tool in domestic and international institutions in order to better understand what is an act of sexual violence to the survivors.
Joyce J. Wangui: If I can cite an example, in 2010, prosecutors at the ICC filed charges against Kenyan president Uhuru Kenyatta which included forcible circumcisions under the category of “other forms of sexual violence but judges decided to classify those crimes as ‘other inhumane acts’. Why this shift?
Alix Vuillemin Grendel: In the decision on the confirmation of charges in the Kenyatta et al. case, ICC judges decided to classify those crimes as ‘other inhumane acts’. They rejected the argument that forced circumcision of men constitutes sexual violence, stating: “The Chamber is of the view that not every act of violence which targets parts of the body commonly associated with sexuality should be considered an act of sexual violence.” Rather, the Chamber found that “it appears from the evidence that the acts were motivated by ethnic prejudice and intended to demonstrate cultural superiority of one tribe over the other” and were thus better characterized as “other inhumane acts.” (ICC-01/09-02/11-382-Red, paras 265-266.) However, if violence against a person’s sexual organs is not necessarily a crime of sexual violence, then what is?
Joyce J. Wangui: The term ‘conflict-related sexual violence’ suffers from an alarming lack of precision largely due to the language used by practitioners – humanitarians, academics, service providers, activists and journalists like myself – language which does not ‘call it what it is’. In your campaign, what sort of language have you identified as faulty and how will it [campaign] rectify this?
Alix Vuillemin Grendel: What we identified most is that there was a gap – so no language at all to define what constitutes an act of sexual nature, or what may constitute the term ‘ sexual’, especially to survivors of these acts. There is no universal view of what makes an act ‘ sexual’ – this is largely dependent on the individual, on the context of the act, on the culture in which the act occurs…
Joyce J. Wangui: Why is it important to ‘call it what it is’?
Alix Vuillemin Grendel: It is crucial to ‘call it what it is’ to ensure a better reflection of the harm suffered by victims/survivors of sexual violence in conflict at all stages of international, regional and national criminal law procedures. Only then can we work toward full accountability as part of a process of meaningful justice.
Joyce J. Wangui: What is the one thing you took from the Uganda symposium that you were not aware of?
Alix Vuillemin Grendel: Difficult to answer, as there were so many things I took away from the symposium! But focusing on the input I was seeking for the Civil Society Declaration on sexual violence – that seeks to inform practitioners by giving guidance on what an act of sexual violence could constitute to a survivor plus giving a list of examples of acts of a sexual nature – I learned that the Declaration should explicitly include (along the many other acts we have already listed) acts of tying, burning, electrocuting and crushing of genital organs.
Joyce J. Wangui: As you go around speaking to survivors, what are some of the different or new forms of sexual violence that they articulate; perhaps away from the predominant forms attached to the genital area?
Alix Vuillemin Grendel: Indeed. From the consultations with self-identified survivors of sexual violence, we learned that in certain contexts, the wrists, the hair, and the lower back (for example) are body parts that survivors have identified as being ‘sexual’. From one group of survivors, we understood that they experience the act of being ‘marked’ by having been bitten (bites that leave visible scars) following rape, is in itself also an act of sexual violence. From another group of survivors, the fear or reasonable apprehension of sexual violence – without explicit threat or physical acts – constitutes sexual violence in itself.
Joyce J. Wangui: Is your campaign looking at sexual violence against men and boys in conflict? As regards language, you often hear many male survivors describing their experiences as “sexual torture”.
Alix Vuillemin Grendel: Yes, we do very much include sexual violence against men and boys. We will need help however in making sure that we cover as much as possible and that it is as inclusive as can be. If survivors want to call their lived experiences “sexual torture”, it should be up to them. There are limits in terminologies used in law, but mere accountability doesn’t necessarily make for meaningful justice, not to all survivors at least.
We are also looking to have more consultations with survivors, including in Syria in June.
Joyce J. Wangui: As you collect data for your campaign, what are some of the assumptions, misconceptions of sexual violence that you have come across (from academics, lawyers, researchers, survivors, humanitarians) and how do they impede on response to conflict-related sexual violence?
Alix Vuillemin Grendel: What we learned, or what was confirmed to us, is that an act of a sexual nature may be sexual in nature (to the victim/survivor or to the perpetrator) even if there is no sexual gratification. Similarly, there is no need for physical contact for an act to be sexual in nature to the victim/survivor or to the perpetrator. For example, an act may be experienced as being sexual if it affects a person’s sexual orientation or gender identity. Again, whether an act is sexual in nature and whether it is experienced as violence is partly based in the cultural context. One must understand this context in order to understand whether sexual violence has been committed, and thus whether it must be investigated, prosecuted etc. as such.
The list of what may constitute acts of sexual nature is long, as is the list of examples of ‘ acts of sexual nature ‘ – both will be included in the Civil Society Declaration.
Joyce J. Wangui: Lastly, how can the law incorporate the new understanding and definitions of sexual violence to advance accountability for this crime?
Alix Vuillemin Grendel: With the Civil Society Declaration, we seek to offer a contemporary, victim-centric and contextually relevant guidance, or reference point, to criminal law practitioners on what makes violence sexual. This, again, would ultimately help to ensure a better reflection of the harm suffered by victims of sexual violence in conflict at all stages of criminal law procedures. While not the primary aim of the campaign, the Civil Society Declaration could lead to clarifying the definition of sexual violence at the ICC and in other relevant legal texts. We, however, do not seek to define sexual violence, as definitions inherently give a narrower framework than the many forms and ways sexual violence can be perpetrated or experienced.