Unfortunately, Luis Moreno-Ocampo, the ICC's first prosecutor, has shown little grasp of the statute he is supposed to be enforcing. He came to the court to implement a treaty unique in its attention to gender, and his first case ignored gender altogether. This case, in which Thomas Lubanga, a Congolese militia leader, is accused of drafting child soldiers, has already dragged on for four years. It has been almost thrown out of court twice because the prosecution evidence was so poorly prepared, and last year, Lubanga's defence team charged that prosecution researchers in Congo got some witnesses to fabricate evidence. This charge could result in the whole case coming to nothing.
Equally serious was Moreno-Ocampo's failure to include rape among the charges, even though young girls abducted by Lubanga's troops were routinely forced to have sex with their commanders. Women's human rights activists tried to persuade the prosecutor to include crimes of sexual violence among the charges, but he wouldn't listen. Now, because Lubanga was not charged with rape, defence attorneys do not have to allow questions about those crimes.
The ICC's second Congo case, that of Jean-Pierre Bemba, is flawed in a different way. The Rome Statute provides that rape can be charged as a crime in itself and also as a form of torture or genocide; such multiple charges were intended to capture the many dimensions and the full harmfulness of the act. However, in the Bemba case, the judge in the pre-trial chamber has refused to allow multiple charges of rape; she threw out the charge of torture, partly because the indictment was poorly drafted and the prosecutor's office showed insufficient evidence.
All this underlines the importance of another provision of the Rome Statute, also violated by Moreno-Ocampo – the early appointment of high-level experts on gender as a permanent part of the prosecutor's staff. Those who drafted the Rome Statute knew from experience that mainstreaming crimes against women was a new idea, and lawyers and judges would need to be trained for the work. But instead of appointing gender experts, integrating them into his staff and letting them shape cases, Moreno-Ocampo delayed any such appointment for six years.
Finally, in November, 2008, as criticism of him mounted, he appointed Catharine MacKinnon as special gender adviser – not a staff position, but a consulting one with no attendance requirement. It was a peculiar appointment in other ways. MacKinnon had not been directly involved in the process leading to the creation of the court and the mainstreaming of gender in the Rome Statute. Her main claim to fame in the US, where she is a polarising figure, has been in sexual harassment law, and through her activities during the "porn wars" of the eighties, when she sought to criminalise pornography as a violation of women's civil rights. She carried her analysis of the centrality of porn into the Yugoslav wars, arguing, on dubious evidence, that Serbian militias in Bosnia were provided with special porn to psych them up for mass rapes.
At the ICC, it has begun to appear that MacKinnon's main assignment is to blow smoke. In a speech in September 2009, she said:
"The most striking quality of the pursuit of these [gender-based] crimes by the ICC to date has been that they are there: their centrality to every prosecution so far, in a way that clarifies how the sexual abuse becomes a specific instrumentality in each conflict."
This is a whitewash of the way gender was neglected in the early years of the court, as evidenced in the Lubanga case.
When the modern human rights movement began, its normative victim was an eastern European male prisoner of conscience. In the nineties, women activists shone light on violations based on gender, and the definition of a human rights victim became broad enough to include sexual violence by both state and "non-state actors" – militias, paramilitary groups, religious fundamentalists, even fathers and brothers and husbands. The Rome Statute is one of the major markers on that road. But the "war on terror" has returned us, in many ways, to status quo ante: today, the normative human rights victim is once more a male prisoner, this time in Guantánamo; human rights offences by states are back at centre stage; and crimes against women and children are again being marginalised.
The ICC's deficiencies are one symptom of this slippage in the progress of women's human rights. The struggle between Gita Sahgal and Amnesty is another. We live in a world where the internal processes of human rights organisations, whether Amnesty or the ICC, lack transparency, and where discussions about them are increasingly confined to experts. While the context of women's human rights work has been transformed by the "war on terror", the rest of the human rights movement has not caught up, and the global women's networks that existed in the nineties have become fatigued and lack funding.
At an international conference at McGill University in 1999, Rhonda Copelon observed that "human rights, like law itself, are not autonomous, but rise and fall based on the course and strength of peoples' movements and the popular and political pressure and cultural change they generate." We cannot allow ourselves to be pushed back to a narrow mid 20th-century vision of human rights, least of all in the ICC. Ocampo-Moreno's term as prosecutor expires in 2012. It is time for activists to begin to mobilise, and lobby for a replacement who will have a better grasp of the gender provisions so meticulously written into the Rome Statute.