Alix Vuillemin on gender justice and the ICC: unspoken obstacles and possibilities
The basic Human Rights of women can never be curtailed by any cultural context.
Alix Vuillemin studied Public International Law, with a Master specialization in International Criminal Law. After an internship at FIDH, with the permanent representative to the ICC in The Hague, Alix worked for 9 years at the Coalition for the ICC. She also worked for Human Rights Watch and is currently working at the Women’s Initiatives for Gender Justice. She is passionate about her work because she is in direct contact with different actors from around the world, including brave frontline defenders. Alix’s engagement in the field of gender justice is driven by the certainty that recent developments in making gender justice central to international justice, and the ICC’s involvement in the advancement of gender justice make this time a passionate one for women’s rights advocates.
Interview conducted by Chiara Lutteri (2022)
The interview was conducted in the spring of 2022 and has been edited for clarity
In your professional experience, what would you say are the current challenges for the implementation of reparations – in their various forms – for female victims of international crimes?
To contextualize, the introduction of reparations within the Rome Statute system was very much pushed by civil society’s participation, which is still a big part of the whole process. Very strictly speaking, this system has created two pillars, the ICC and the Trust Fund for Victims, and that makes the system tremendously helpful and foreseeing. Implementation of reparations presents different challenges, but one that we come across in our field are the “unspoken obstacles”. We come across them very often when dealing with gender justice, sexual violence, understanding women’s needs… There have been great advances, there is today much more understanding, and the Trust Fund is a leader in that: this institution has been very progressive in the implementation of programs and reparations with a gender perspective.
What I’d call “spoken obstacles” are such topics as resources, funding for reparations, strategic litigation to make sure that there is a stronger body on reparations, but these questions don’t reach the topic of better understanding, training, discussing gender… these are uncomfortable topics, thus remain mostly unspoken. It’s unspoken to say, for example, “Hey country X, you donated money and you said it was to be allocated to gender… not to be ungrateful, but what is the impact?” These questions are unspoken because they are uncomfortable.
There is this feeling that even though we, as a collective, understand gender violence better, there is a little bit of a tick-the-box exercise: what we see, sometimes with ourselves, but also with NGO colleagues and very much with practitioners (judges, investigators, prosecutors, people working at the Court, but also States Parties) is an attitude of: “Oh yes, gender! We need gender equality”, in an effort to call ourselves champions of gender equality. But where is the actual knowledge that makes us understand what is needed and what our role might be in the advancement of gender equality? The centrality of gender is something that we, as advocates, welcome; but there is also a pitfall there, because it leads actors to think they’ve already covered the topic of gender. But they haven’t.
That is particularly important in the context of reparations. In implementing reparations, the Trust Fund has sometimes needed to deal with a lack of understanding by judges, by State Parties – that have such an important role in providing contributions – as well as in the implementation stage (partners, selection processes…). All these facets fall within the unspoken obstacles. We see it particularly when we focus on sexual violence accountability measures with practitioners: it is still an uncomfortable topic. What is uncomfortable is addressing your own misunderstanding, on a personal level if you’re a practitioner, a judge... or lack of understanding. This requires putting your ego aside and admitting that you might need a bit of training. That, of course, links to the issue of culture and understanding of cultures. These are unspoken obstacles that are real and need to be mentioned, starting from an individual basis.
Talking about culture, some have argued that there is a tension between preserving traditional and cultural equilibrium, and addressing existing inequalities, such as gender ones, through reparations: do you think this tension is real? What would you say is the state of the debate within the ICC?
This issue is relevant and constitutes an obstacle that also remains very little spoken. This tension exists very much, it is real in the debate. There is, of course, a very real need to take into account culture and cultural contexts; however, when you’re aiming to address gender equality through any means, that means that you’re aiming to uphold or work towards the basic human rights of women where they have not been met yet. If you’re doing that, the basic Human Rights of women can never be curtailed by any cultural context. The tension survives because of the discomfort of institutions to come into patriarchal societies, but it’s a moot argument.
This is something that we try to do in the courtroom as well: recently we submitted Amicus curiae briefs in the Ongwen case on forced pregnancy. The discussion that followed in the Chamber was very focused on the cultural context of forced marriage. A big contentious point of the discussion was how does forced marriage fits into the cultural context. But then again, this is moot, and a perfect example of unspoken obstacles: for 45 minutes the discussion revolved around forced marriage and the cultural context, and there were no questions whatsoever on forced pregnancy. Forced pregnancy is still one of the most contentious criminalization of conduct, because it necessarily links to sexual reproductive health and implies, in instances, abortion. But in that specific case, the whole discussion was about forced marriage and culture and, I think, was forced pregnancy perhaps a little too contentious, too uncomfortable to discuss…? It goes to such a degree of difficulty, touching religious beliefs etc….
But that again goes against basic human rights, because sexual reproductive health rights are basic human rights.
In the Al Mahdi Case, the crimes that were investigated and prosecuted are not directly related to gender. Do you think that reparations should take into account a gender perspective even for those crimes that can be considered gender-neutral? If so, how?
Absolutely. In everything that the Court does, a gender perspective should be taken and can be taken, even if certain crimes and adjudication cases do not have a specific sexual or gender component. From the security, to the budgeting, to interpretation… every little thing that has to do with the Court must have a gender perspective. How that needs to happen is not always obvious. It’s something that we continuously say: be aware of the lack of understanding and reference to experts out there who are very useful for their expertise and inputs on these issues. So yes, even in the case of al Mahdi it is important to take into account a gender perspective.
What we continuously hear is that the Chambers cannot order reparations outside the scope of the case, so one of our advocacy points to the Office of the Prosecutor is to ask that gender be taken into account when charging, because it then has an effect on reparations, that can have such an important impact on communities. In the al Mahdi case, the Trust Fund smartly tried to complement what it couldn’t do through reparations with its general assistance mandate. The crime base is very narrow, but in reparations we have seen and welcomed that, despite this narrow crime base, some judges felt that they could go beyond that. As we’ve seen before, that jurisprudence on reparations needs to be set to make it clear that gender dimensions can and are central in the implementation of reparations.
If we zoom into the community, is the implementation of symbolic reparations – for example – reaching women? How is it reaching women in those localities? It can sometimes be as simple as thinking about the access of women to the communal areas where some implementations take place, about consulting women as to the implementation strategy – or are just the elders, mostly men, involved? There are many facets to the implementation of reparations, but we always try to go back to the basics: in everything the Court does, there can be and there should be a gender perspective, and when there is no specific knowledge as to how, the Court should reach out to experts.
In your experience within civil society, what is the articulation of local and civil society organizations with the ICC and the Rome Statute’s system?
The articulation between civil society organizations and the Court is something I’ve worked on for years within the Coalition for the ICC, it is part of a real effort to try to bridge as much as possible bigger western-based organizations – that have a lot of funding and operate in international arenas – with civil society, local colleagues and the work they do at a local level. Very often, they have a better understanding and feeling of the needs and wishes of affected communities than other actors in the international sphere. In international institutions, there’s a need to understand the people who are going to be the ones implementing reparations on the field and can provide understanding of the local context. There are a number of formal and informal mechanisms that try to do that.
This brings me back to donors: civil society depends on donors, since what they do influences to an extent how we can operate. So, what we try to make clear to donors is that they ask for the division of programs between international organizations and local partners, to force Hague-based organizations like ours to find and cooperate with local actors. Civil society plays a fundamental role in all the stages of the investigation, starting with Article 15 Communications, provided by all sorts of civil society actors to the OTP; the OTP then, to decide whether to proceed with the investigation, needs to examine the context on the field and oftentimes cannot rely on the governments, which makes the OTP rely on civil society networks that have the knowledge of the local context – language, history, logistics… So, civil society is an absolute integral part since the first stages. They are called intermediaries under the ICC’s structure, and they are protected as well, because it can be risky for certain NGOs to cooperate with the ICC in certain localities. There’s another aspect, which we do both in The Hague and in New York, which is institutional monitoring of States: a part of it is to advocate and be critical about State’s policies, though discussions, papers, statements; another is being constructive and helpful, providing resources, expertise, advice on gender justice.
Justice is not done if it is not seen to be done.
The ICC, on its side, has an enormous impact through outreach and public information: justice is not done if it’s not seen to be done. Therefore, the ICC is relying quite heavily on the civil society community to do that; we have colleagues monitoring the trials and publishing posts, summaries, and analyses online, which is extremely important. Other colleagues, journalists for example, try to counter misinformation in their own countries, and that aspect is important to the efficiency of the ICC’s work. There are so many ways through which civil society is involved with the ICC, that it became one of the reasons why the Rome Statute system is far-reaching.
In this context, what mechanisms do you consider to be efficient for the implementation of reparations for women and girls, one facet of which is ensuring the non-repetition of the committed crimes?
First of all, to ensure the non-repetition of a crime we need to address the issue of society and inequalities within societies: that can be done through civil society involvement, empowerment of women, public discussions, working with local leaders and governments. One efficient means to include a gender perspective into the society is to use development funding for both developing countries as well as civil society. Some countries have a very clear feminist approach to their development aid: for example, if you want to receive development aid from Canada, you need to have a gender component, not only within your organization but also in your program management and implementation. We’re talking about societal change here, and it’s very broad.
But international criminal justice can have its role to play in many various ways: the implementation of the Rome Statute, for starter – and it is something that we, as civil society, advocate for, because the implementation of the Rome Statute means the integration of provisions and norms that are, across the world, far-reaching with regards to gender justice standards. If you have that implemented, you have an available legal tool, it starts a discussion. But also, of course, the complementarity aspect of the Rome Statute system with national and local justice mechanisms – information, lesson-learned exchanges, capacity building – that can have an important impact on societies and gender. Despite it being a broad concept and group, I want to stress the importance of civil society engagement: women who have small initiatives and efforts, grassroots organizations led by women, have a real and big impact on the local context, through talking to community leaders, organizing discussions, helping with the diffusion of ICC’s official documents… From these grassroot activities come empowerment of survivors, of survivor-led groups, participation of survivors in discussions. When we talk about reparations, accountability, or justice, only through the real involvement of women an entire society becomes part of the process and obtains real results. In conclusion, to save the world, you need women!
About the interviewer: Chiara Lutteri is a Master’s graduate in International Security. Her studies have focused on the African continent, with a particular interest for the Maghreb and West Africa.