“[W]hether or not the International Criminal Court will actually serve the interests of victims in an effective & satisfactory way remains to be seen.”[1]

 Just over one year ago, the International Criminal Court (ICC) sentenced Jean-Pierre Bemba Gombo (Bemba) to a total of 18 years’ imprisonment. This was the Court’s first trial judgment for sexual and gender-based violence (SGBV). To many, this was a milestone in the Court’s thus far disappointing record regarding sexual violence convictions and sentencing.

Since its inception, the ICC has been hailed as a “victim’s court,” one that would give survivors of the world’s most heinous crimes an influential voice in the administration of justice. Unlike its predecessor tribunals, the ICC is obligated to consider victims and their interests at all stages of the proceedings including reparations. ­According to the Court’s founders, these “revolutionary conditions,” meant that the ICC could serve “not only a punitive but also a restorative function,” reflecting the “growing international consensus that participation and reparations play an important role in achieving justice for victims.”[2] But has the Court met its goal? And what about its impact on victims of sexual and gender-based violence? Contrary to its founders’ intentions, it would appear that the ICC does little to assist women or girls in the aftermath of violent sexual and gender-based oppression.

 

The increased prevalence of directed and systematic sexual violence during armed conflicts has frequently resulted in it being labeled a weapon of war. Indeed, the ICC has recognized this fact both in practice—in the court’s most recent attempt to take on sexual violence under crimes against humanity rendering a guilty verdict against Jean-Pierre Bemba of the crimes against humanity of murder and rape, and the war crimes of murder, rape, and pillaging and in policy—publishing their Policy Paper on Sexual and Gender-Based Crimes. In this sense, the ICC has made remarkable leaps forward regarding key normative developments in criminalizing sexual violence on an international level. But despite these positive developments, a number of problems remain.

1. Problematic Conceptualization of Sexual Violence

Bemba brings back the mechanical descriptions that constitute the threshold for rape. The ICC stated that the material elements of rape (actus reus) require an invasion of the body consist­ing of penetration of anywhere with a sexual organ, or anal or genital pen­etration with an object or other body part. As Marie-Alice D’Aoust notes, by refusing to acknowledge the broader nature of sexual violence than a strict act of pen­etration, the ICC denies victims the recogni­tion of their sufferings and shows little deference to the various developments that have occurred throughout the world with regards to the meaning of sexual violence.[3]

2. Lack of Recognition of Vio­lence Against Women on a Daily Basis

For many women around the world, sexual and gender-based violence is a part of their everyday life. While the recognition that such harm can constitute a crime against humanity is important, such conceptions undermine our understanding of sexual violence as a harm that burdens women at a systemic and daily scope. As Fionnuala Ní Aoláin notes, since international jurisprudential success does not transform the landscape of accountability, gains at the level of international justice can represent net losses at the local level.[4] In fact, the two can at times be entirely divorced from one another. There has not necessarily been an expansion of international criminal law norms that capture sexual and gender-based violence that has trickled down into domestic legal systems. This can prove problematic when such a court has been symbolically hailed as a “court of the people.”

3. Lack of Adequate Reparations

The ICC recently awarded individual and collective reparations measures to victims in the Katanga case. The ICC awarded victims with a symbolic individual compensation measure, unique in the history of the Court, of 250 USD for each victim recognizing that “the symbolic amount does not compensate the injuries suffered in their entirety, but is to alleviate the harm suffered by victims.”[5] These measures are hardly significant for the ordinary struggling victim. In many respects, it appears that such measures do little to recognize the common, everyday, predatory violence that millions of women experience around the globe.

Perhaps one should ask whether victims of sexual and gender-based violence are best served at the ICC?

The formal justice system is framed in an adversarial setting where the focus is on ensuring that the offender is punished for the wrong that he has done. While there is some emphasis on the victim to ensure that ‘justice’ is served, little is done to ensure that the victim’s needs are met.

While it is evident that rule-of-law development is a key to ending the culture of impunity of sexual violence, what use is a justice system that doesn’t make the victim whole? Take for instance the practical barriers a woman faces to pursuing a legal claim – By pursuing a legal claim, she opens herself up to community shame by having to testify in open court and in the end she may be forced to marry her perpetrator, a traditional practice all too common in the developing world. Addressing this important topic requires a holistic approach to justice. It requires a consideration of non-judicial mechanisms to re-build these women and girls including but not limited to community education, victim-assistance and reparations.

While women want to see their perpetrator brought to justice, there are more pressing problems with which they are confronted. Women want counseling and social support. Women want jobs so they can feed their children. Women want a community that won’t shame them for a crime they had no control over.

The ICC has an important and symbolic role to play on the international stage – to ensure that the world’s greatest perpetrators of violence are held accountable. But to hail it as a victim’s court and by association asking it to compensate, heal and help rebuild lives is to perhaps unduly burden it.

[1] William A. Schabas, An Introduction to the International Criminal Court, 3d ed (Cambridge: University of Cambridge, 2007) at 327.

[2] ICC, Report of the Court on the Strategy in Relation to Victims, ICC-ASP/8/45 (10 November 2009), 3.

[3] Marie-Alice D’Aoust, “Sexual and Gender-based Violence in International Criminal Law: A Feminist Assessment of the Bemba Case” (2017) 17 Int’l Crim L Rev 208 at 217.

[4] Fionnuala Ní Aoláin, “Gendered Harms and their Interface with International Criminal Law” (2014) 16(4) Int’l Feminist J of Politics 622 at 625-626.

[5] https://www.fidh.org/en/issues/international-justice/international-criminal-court-icc/for-the-first-time-icc-awards-symbolic-individual-reparations