The Victim’s Court? Sexual & Gender-Based Violence at the ICC

“[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.

Bemba picture

ICC Trial Chamber III sentences Jean-Pierre Bemba Gombo to 18 years’ imprisonment for war crimes and crimes against humanity committed in the Central African Republic in 2002-2003

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] Continue reading

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