ICC issues landmark judgment: Bemba convicted as commander-in-chief for sexual violence crimes (Part 1/2)

Today, 21 March 2016, was a historic day for the International Criminal Court (ICC). Trial Chamber III unanimously convicted Jean-Pierre Bemba Gombo (Bemba) for his responsibility as commander-in-chief for crimes of murder, pillage, and rape committed by soldiers under his effective authority and control in the Central African Republic in 2002-2003. This makes Bemba not only the first person to be convicted by the ICC for crimes committed by troops under his command, but the first person to be convicted of sexual violence. I have not yet finished reading the 364-page judgment in full, but in this two-part blog post, I provide some initial highlights on these two questions. Citations are to paragraphs in the judgment.

First conviction for sexual violence

As I wrote previously, Bemba stood trial for two counts of sexual violence: rape as a war crime and as a crime against humanity. The judgment is the ICC’s fourth, but the first to include a conviction for sexual violence. Thomas Lubanga was convicted in 2012, but the case did not include sexual violence charges. Mathieu Ngudjolo and Germain Katanga were tried for rape and sexual slavery, but Ngudjolo was acquitted in full in 2012, and Katanga partially acquitted of the sexual violence charges in 2014. Bemba’s conviction thus marks an important turning point for the ICC regarding accountability for sexual violence.

Importantly, the rape charges in this case were based on evidence from both male and female victims of rape. The trial judgment describes in quite some detail specific acts of rape committed against both men and women. The Chamber heard testimony about rape in public, rape in front of family members and communities, gang rapes, and rape of young girls, some as young as 10 years old. Men were also raped, including when trying to prevent their wives or daughters from being raped. Rapes were often committed in conjunction with other crimes, such as pillaging, and marked by violence, often including beatings and threats with weapons.

The judgment reiterates many of the Rome Statute’s gender sensitive legal standards. The Chamber emphasised that rape under the Rome Statute is a gender-neutral crime: it is committed by the “invasion” of a part of the victim’s body (or that of the perpetrator) by “a sexual organ”, can include same-sex penetration, and can thus encompass both male and female perpetrators and victims. Oral penetration can also amount to rape (100-101). The Chamber also recalled that invasion using objects or any other part of the body constitutes rape under the Rome Statute (99). The fact that acts are committed by force, threat of force or coercion, by taking advantage of a coercive environment, or against a person incapable of giving genuine consent for the Chamber gives the invasion of a body “a criminal character” (102). The Chamber reiterated that a victim’s lack of consent is not a legal element of the crime of rape at the ICC (105). Finally, the Chamber noted that in analysing the evidence, it was guided by Rules 70 and 71, which detail important principles regarding evidence of sexual violence.

The Chamber also discussed evidence regarding the motivation behind the crimes, noting that MLC soldiers sought to punish civilians for perceived support for the enemy, or looted and raped as a way of “self-compensat[ing]” for lack of sufficient remuneration (678). The Chamber noted that the MLC considered rape victims “war booty”. Rape was intended to humiliate and punish victims, and to destabilise communities. Highlighting the broad range of consequences for victims, such as “significant medical, psychiatric, psychosocial, and social consequences, including PTSD, HIV, social rejection, stigmatisation, and feelings of humiliation, anxiety, and guilt” (567), the Chamber noted that such objectives were often realised.

Evaluating all the evidence, the Chamber found that “perpetrators, by force, invaded the bodies of [at least 28] victims by penetrating their vaginas and/or anuses, and/or other bodily openings with their penises” (633), and did so “knowingly and intentionally” (637). The acts were part of the MLC’s modus operandi. Importantly, the Chamber held that “these multiple acts constituted a course of conduct, and not merely isolated or random acts” (671). Relying on certain identifying characteristics, such as language, uniforms, and the exclusive presence of the MLC in the relevant locations, the Chamber found established beyond a reasonable doubt that the MLC committed rape as both war crimes and crimes against humanity.

Significantly, as during the trial itself, the Chamber displayed sensitivity to the impact of the rapes on victims, and the need to consider this during testimony and in evaluating the evidence. The Defence had challenged inconsistencies and omissions in the testimonies of many direct victims of sexual violence. For instance, one victim of rape had not reported the crime to her family lawyer (but did speak to ICC investigators) because of the shame she felt in her community. Another victim had been inconsistent regarding her age at the time of the crimes. For the Chamber, however, these discrepancies did not discredit or undermine their testimonies. In fact, the Chamber noted that such inconsistencies “can be explained by the lapse of time between the events and the testimony, the traumatic circumstances, and … difficulties discussing such personal scenes in court” (492). It continued to rely on their testimonies.

Finally, noting that although the charges of rape as a war crime and crime against humanity are based on the same underlying conduct, these are not “impermissibly cumulative” because war crimes and crimes against humanity “have materially distinct elements” (743-751).

From a first quick read, the ICC’s first (and long awaited) conviction for sexual violence seems to be a strong judgment. As the first sexual violence conviction, this will also be the first time a reparations order at the ICC will specifically address rape. Bemba’s conviction as military commander for these crimes, the subject of the second part of this blog post, is equally significant.

Read the trial judgment

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16 thoughts on “ICC issues landmark judgment: Bemba convicted as commander-in-chief for sexual violence crimes (Part 1/2)

  1. Thanks for the post . There is one problem it seems , with the idea that : ” Victim’s lack of consent is not a legal element of the crime of rape at the ICC ” , for :

    The very heart of definition of rape , universally , has to do , with sexual assault , without a consent given , or , without genuine consent . So , It must be then , element of crime !! here for example , new York , definition of rape , from its penal law , here I quote :

    ” S 130.05 Sex offenses; lack of consent.
    ” Whether or not specifically stated, it is an element of every offense defined in this article that the sexual act was committed without consent of the victim. ”

    And here from the Israeli penal code ( 1977 ) :

    ” 345. (a) If a person had intercourse with a woman –
    (1) without her freely given consent;
    (2) with the woman’s consent, which was obtained by deceit in
    respect of the identity of the person or the nature of the act;
    (3) when the woman is a minor below age 14, even with her
    consent;
    (4) by exploiting the woman’s state of unconsciousness or other
    condition that prevents her from giving her free consent;
    (5) by exploiting the fact that she is mentally ill or deficient, if –
    because of her illness or mental deficiency – her consent to
    intercourse did not constitute free consent.
    then he committed rape and is liable to sixteen years
    imprisonment.”

    So , by definition , sexual assault of such , or rape , within a coercive environment , or taking advantage of it , means then :

    Lack of consent , or lack of genuine consent , since , one can imagine , that a soldier , could perfectly prove , that during war , he has sexual contact , and full one , with woman , while prior to it , genuine consent been given . He wouldn’t be accused of rape of course !! He would face , greater , and even far greater burden of proof , but , not guilty finally , if proven so . In such , it must be an element of crime !!

    Thanks

    • Thanks for your comment, El roam. It has been well-established in international criminal law jurisprudence that the circumstances in which rape (or other forms of sexual violence) as a war crime, crime against humanity or act of genocide are committed negate possibilities of meaningful consent. For instance, in Akayesu, the ICTR provided the following definition of rape: “a physical invasion of a sexual nature, committed on a person under circumstances which are coercive”. The relevant legal element here is the coercive circumstances, not the absence of consent. I won’t go into detail here about the evolving jurisprudence on the question of consent that followed at both ICTY and ICTR – a lot has been written on this specific question, see e.g. Anne-Marie de Brouwer’s book, this article by Catherine MacKinnon, or this paper by Patricia Viseur Sellers (only some of the many resources on the issue of consent in international criminal law). Notably, for the purposes of the ICC, as the Trial Chamber indicates in paragraph 105 of the Bemba trial judgment, the Rome Statute’s preparatory works clearly indicate that the drafters “chose not to require that the Prosecution prove the non-consent of the victim beyond reasonable doubt”. Rather than having to prove that the victim did not consent to the sexual violence, it must prove that “force”, “threat of force” or coercion” were used, or that the perpetrator took “advantage of a coercive environment” to perpetrate the crime. This is a very different question than having to prove non-consent on the part of the victim, hence why it ruled that consent is not a legal element of the crime of rape under the Rome Statute.

      • Thanks for the reply . The point is , that the consent doctrine , in rape , has very broad legal sense . It does comprise ” coercive environment ” . In such , consent , is an element of crime in rape definition , whatsoever . For the rest , we deal with burden of proof , not consent !! Because , that broader meaning , put severe burden of proof , upon the offender , but one should not confuse burden of proof , and deliberate consent , with consent , in its broader sense of it ( conduct ,and genuine consent ) .

        In such , the fact , that war , creates by nature , coercive environment , creating so , advantage to offender , doesn’t eliminate the consent as element of crime , but , on the contrary , granting it , broader sense , yet , we deal here yet , with consent in other incarnation of it . Otherwise , every sexual act , in war , automatically , would be consider as rape ?? without the need of proving nothing ?? Suppose as illustrated by me , a victim, had perfect will , to have sexual act with soldier , and she stands and testifies in court , that she was in perfect sound condition to have it , it was here perfect will , would the offender be found guilty finally ?? of course not !! why , here consent , has travelled all that long way , of burden of proof . Yet , the slightest hesitation of here as victim , would criminalize the offender , So , has to do with consent , and burden of proof !!

        In this sense , there is a match , between domestic and international criminal law .

        Thanks

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