Leaving Behind the Age of Impunity

Abstract

AbstractAs sexual violence in conflict – predominantly affecting women and girls – appears to increase in prevalence, gender justice advocates are calling for a reparations model that is not only restorative, but also, and more critically, preventative or transformative. This article asks whether the reparations mandate of the International Criminal Court (ICC) and the Trust Fund for Victims has the potential to address the pre-conflict structural inequalities that often contribute to the sexual violence and harm experienced during and post-conflict. Drawing on social theorist Nancy Fraser's model of trivalent justice and the ICC's first reparations decision in Lubanga, this article argues that the design of the ICC's court-ordered reparations mandate, and the unrealistic expectations it raises, may make it untenable to support the key transformative elements of recognition, representation and redistribution essential to addressing structural inequities contributing to conflict-related sexual violence. It suggests however, that modifying initiatives of the ICC's Trust Fund for Victims and a greater emphasis by the ICC on the notion of member state "reparative complementarity" may provide mechanisms for transforming conditions that trigger and perpetuate gender violence during conflict.Keywords: conflict-related sexual violence against womenInternational Criminal CourtreparationsNancy Fraser AcknowledgmentsThis article is based on research supported by the Australian Research Council Discovery Projects funding scheme (DP140102274). Our appreciation goes to our colleagues in the UNSW Australian Human Rights Centre and particularly to Emily Waller for her meticulous and invaluable research assistance. We would also like to thank the anonymous reviewers whose engagement has contributed greatly to the article.Notes on contributorsAndrea Durbach is Professor of Law and Director of the Australian Human Rights Centre in the Faculty of Law, University of New South Wales. She has conducted research on reparations and Australian's "Stolen Generations," prompting two Australian government inquiries. From 2011 to 2012, she was Deputy Sex Discrimination Commissioner at the Australian Human Rights Commission and in 2013, she was engaged by the Australian Defense Abuse Response Taskforce to design, implement and evaluate a reparative framework to address the needs of Defense Force victims of abuse and transform Defense Force culture to reduce and prevent harmful conduct.Louise Chappell is a Professor in the School of Social Sciences at the University of New South Wales. Her research focuses on women's rights, international gender justice and gender and politics. Louise is currently completing a four-year Australian Research Council Future Fellowship project on the implementation by the ICC of its gender mandate to be published by Oxford University Press in 2015.Notes1 Some gender and security and transitional justice scholars argue that conflict-related violence against women is not "exceptional," but part of a continuum of other forms of violence against women (social exclusion, financial control and exploitation and domestic violence) which combine to exacerbate their vulnerability (see Charlesworth and Chinkin Citation2000, 333; Urban Walker Citation2009, 28–33; Ní Aoláin, Haynes, and Cahn Citation2011; True Citation2012, 120, 199–122). The form and impact of violence women experience during conflict may differ in societies where political history, race, class and culture or religion have determined social relations and the manifestation of power (El-Bushra Citation2003). What remains troubling is that until recently under international law, accountability and redress for the range of violent conduct experienced by women during conflict has been at best a marginal concern, leaving impunity for these crimes intact (Charlesworth and Chinkin Citation2000; Ní Aoláin, Haynes, and Cahn Citation2011).2 In the decision of the case of González et al. ("Cotton Field") v. Mexico: Judgment of November, 2009, the IACtHR linked structural gender discrimination to crimes of sexual violence and called on the Mexican government to develop measures aimed at overcoming structural discrimination. The implementation of the decision was frustrated by the lack of state action, highlighting the difficulty of regional and international courts have in applying such reparative measures (True Citation2012, 85–86).3 The WIGJ took over from the Women's Caucus for Gender Justice in 2002 and has remained the most prominent gender justice advocacy organization within the ICC's civil society community. In 2012, Brigid Inder, its long-term director, was appointed ICC Chief Prosecutor Bensouda's Gender Adviser.4 The ICC reparations system is case-based and therefore its individual reparations rulings may influence but are not binding on future cases (ICC Citation2012d, para. 181).5 Reporting in 2013, the TFV had a total of €5.4 million from which to fund any court-ordered reparations as well as its assistance programs (TFV Citation2013a). These funds will be boosted in 2014 by almost €6.5 million due to an increase in state donations from Sweden and other European countries (TFV Citation2013b); nevertheless, the need still significantly outstrips available resources.