The former first lady of Cote d'Ivoire is the first woman to be indicted by the International Criminal Court—and a rare example of someone outside the formal hierarchies of power being held responsible for a government's actions.
On November 22nd, the International Criminal Court (ICC) unsealed the indictment of Simone Gbagbo, wife of the former president of Cote D'Ivoire, Laurent Gbagbo. Laurent Gbagbo is already in detention in The Hague, awaiting trial at the ICC, charged with orchestrating a campaign of violence in an effort to remain in power after losing an election. The ICC has now indicted Simone Gbagbo for her involvement in that post-election violence, asserting that she was personally responsible for crimes against humanity, including murder, rape, and persecution. Significantly, this is the first indictment of a woman by the ICC, perhaps signaling a change in the role of gender in international justice. Yet, the case's most important legacy may instead be the ICC's new willingness to look beyond formal governmental and military hierarchies in identifying those most responsible for serious international crimes.
This first indictment of a woman in the ICC's decade-long existence charges that Simone Gbagbo was the creator, in part, of a plan to perpetrate brutal attacks—including murder, rape, and sexual violence, on her husband's political opponents in the wake of the 2010 election. For the first time, a woman stands before the ICC accused of orchestrating and ordering crimes against humanity. The indictment is, therefore, an important symbol of unfortunate fact from a humanitarian perspective: women, as well as men, plan and commit horrific acts of violence. While there may be fewer examples of women committing these most heinous crimes, men are not the only ones capable of ordering such brutality. This indictment recognizes that reality and lays a marker that international criminal courts will hold any perpetrator—regardless of gender—responsible for his or her actions.
Simone Gbagbo's indictment includes charges of rape and sexual violence as a crime against humanity. That aspect of the indictment marks an important shift in the uneasy relationship between sexual violence and international criminal justice. Since the establishment of the Yugoslavia and Rwanda tribunals (ICTY and ICTR) in the early 1990s, international criminal law has sought to hold accountable the (usually) male perpetrators of sexual violence against the (usually) female victims of that violence.
In 2000 I was working at the Yugoslavia Tribunal on the Foca case, in which three Bosnian Serbs were accused of running a rape and sexual slavery "camp" in Bosnia. I recall the moment when the victims of the Foca rape camp stood in the courtroom of the United Nations tribunal before international judges. They told their story, engraving unimaginable acts in public record. In a moment of horrific courtroom drama the accused perpetrators defended themselves with belligerent arrogance, arguing that these women had consented to their enslavement and rape. The ICTY had to test the credibility of the victims and the accused and grapple with the definition of rape in international law. Eventually Dragoljub Kunarac and his co-conspirators were convicted of crimes against humanity, including rape. In the process the victims, one can hope, found some solace, some vindication, some justice.
The Foca case, however, reflects an archetype of sexual violence and international justice that has dominated the past two decades. It is a model in which the prosecutors of international criminal tribunals offer a form of recourse and retribution for the (usually) female victims of sexual violence that, while as much as a court of law can provide, is rarely adequate. It is a model that, due to lack of court capacity or inadequacy of evidence picks but a few cases, leaving too many victims without justice and too many perpetrators at large. And it is a model that could be seen to portray the sole role of women, as viewed through international criminal law, as powerless victims of conflict.
The Rwanda Tribunal has already recognized that this model is inaccurate and, perhaps, unhelpful. That tribunal indicted a woman, the former Rwandan Minister of Family Welfare, over a decade ago on charges including sexual violence. The indictment of Simone Gbabgo at the ICC for rape and sexual violence as a crime against humanity may indicate that the ICC is finally catching up to the regional tribunals. International tribunals are beginning—even if slowly—to move beyond gender in prosecuting sexual violence. In this new and more realistic approach, women and men can be both victims and perpetrators. Perhaps, a post-gender model of international criminal justice may be emerging in which women and men are held accountable for crimes—sexual or otherwise—without gender itself being the focus.