Accountability for Sexual and Gender-based Crimes at the ICC: An Analysis of Prosecutor Bensouda’s Legacy

Authored by: Diane Brown

Categories: Human Rights
Sub-Categories: Access to Justice and Rule of Law, Sexual and Gender-Based Violence (SGBV)
Region: No Region
Year: 2021
Citation: Brown, Diane. "Accountability for Sexual and Gender-based Crimes at the ICC: An Analysis of Prosecutor Bensouda’s Legacy." Fédération Internationale des Ligues des Droits de I'Homme. June 2021.

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Executive Summary

With the adoption of the Rome Statute of the International Criminal Court (ICC or “the Court”), the international community expressed its will to put an end to impunity for sexual and gender-based crimes. The Rome Statute codifies the broadest range of sexual and gender-based crimes in the history of international law, explicitly proscribing rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and any other form of sexual violence as war crimes and crimes against humanity. Gender is also defined and included as a basis for the crime against humanity of persecution.

As the body responsible for the investigation and prosecution of crimes under the jurisdiction of the ICC, the Office of the Prosecutor (OTP) plays a key role in implementing the Rome Statute’s provisions and securing accountability for sexual and gender-based crimes. In accordance with this mandate, during her nine-year tenure, the ICC’s second Prosecutor Fatou Bensouda has made the investigation and prosecution of these crimes a key priority. She demonstrated this commitment from the outset in spearheading and publishing the ground-breaking OTP Policy Paper on Sexual and Gender-Based Crimes (SGBC Policy), with the aim of “guid[ing] the [OTP] in its work in fighting against impunity for sexual and gender-based crimes, and promot[ing] transparency and clarity, as well as predictability in the application of the legal framework of the Rome Statute to such crimes”.

Through the application of its SGBC Policy, the OTP has made significant inroads in advancing accountability for sexual and gender-based crimes, setting important precedents both within the Court and in the broader field of international criminal law. Prosecutor Bensouda leaves behind an important legacy of achievements and lessons learned in the investigation and prosecution of sexual and genderbased crimes, paving the way for the new Prosecutor, Karim Khan, to carry on this critical task.

Survivors of sexual and gender-based violence, and the international community at large, are now looking to Prosecutor Khan to build upon Prosecutor Bensouda’s legacy in confronting these crimes. It is only with the OTP’s renewed commitment and continued resolve that the ICC can realize the Rome Statute’s promise of delivering gender-inclusive justice.

Bearing this in mind, this report takes stock of the OTP’s progress in addressing sexual and gender-based crimes under Prosecutor Bensouda’s mandate, covering the period from 15 June 2012 to 15 June 2021.6 It highlights the OTP’s most significant achievements, as well as key challenges and opportunities that can be capitalised upon to advance the OTP’s work. The report also includes recommendations to Prosecutor Khan for addressing ongoing challenges and carrying on Prosecutor Bensouda’s work.