A/HRC/27/21
particularly girl child soldiers, have been highlighted. Gender-sensitive evidentiary
principles have been adopted. For instance, the Rules of Procedure and Evidence of the
International Criminal Court do not allow for the admissibility of evidence of victims’
previous sexual conduct in sexual violence cases, establish that proof of sexual violence
does not require corroboration and elaborate circumstances in which consent cannot be
inferred from the silence or actions of victims (see rules 71, 63 and 70).
38.
Prosecutions before international and hybrid tribunals have greatly furthered the
visibility of gender-based and sexual violence, in acknowledging and condemning the
harms suffered by women in conflict, and in establishing an increasingly credible avenue
for securing accountability for such violence.42
39.
International legal developments have further catalysed the enactment of national
legislation criminalizing gender-based and sexual violence, and have established legal
precedents and international standards for domestic prosecutions and legislative reform. In
recent years, for instance, the Democratic Republic of the Congo, Kenya and South Africa
have amended their penal codes to criminalize a broad range of gender-based violations.43
On the basis of the definitions provided in the Rome Statute, various states signatories have
defined these crimes in their national legislation and criminalized them. However, more
work is needed, with inadequate legal frameworks in some States remaining a significant
obstacle to combating impunity. Inadequate or imprecise definitions of gender-based and
sexual violence can leave out certain types of violations, make successful prosecutions
more difficult and exclude groups of victims. National legislation should be in line with
international standards, including as regards criminalizing gender-based and sexual
violence as an international and domestic crime and using gender-neutral definitions that
allow for prosecutions of sexual offences perpetrated against men as well as women. It
should also codify States’ obligations to combat the full range of gender-based and sexual
violence, including, but not limited to, those crimes recognized in the Rome Statute. In
Uganda, OHCHR is providing technical advice to the International Crimes Division of the
High Court to ensure that its rules of procedure and evidence are in accordance with
international best practice.
40.
Important lessons have been also learned about the processes necessary to conduct
gender-sensitive prosecutions and support victims’ effective participation. Achieving
accountability for gender-based and sexual violence requires sustained political will,
targeted prosecution strategies and timely collection of all types of relevant evidence,
including forensic evidence. As in other transitional justice processes, training of
investigation, prosecution and judicial staff is crucial. Experience suggests that many
victims of gender-based and sexual violence feel more comfortable recounting their
experiences to women, demonstrating a particular need to recruit more qualified female
investigators. Prosecutors need training in prosecution strategy and the jurisprudence
around this type of violence, and judicial staff require instruction in the interpretation of
legislation and precedents and in creating enabling courtroom environments. Medical staff
need training also, in the medico-legal aspects of crimes of gender-based and sexual
violence, including how to gather forensic evidence and refer patients to law enforcement
agencies.
41.
Justice is a process, not merely an outcome, and there is increasing awareness of the
need for courtroom procedures that ensure the dignity and protection of victims. Victims
42
43
12
See, for example, A/67/792–S/2013/149, para. 112.
See for example Kim Thuy Seelinger and others, “The investigation and prosecution of sexual
violence” (2011). See also Fionnuala Ni Aoláin, “Gendered harms and their interface with
international criminal law: norms, challenges and domestication” (2013).
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