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