Author: Dieneke de Vos

Colombia’s Constitutional Court issues landmark decision recognising victims of reproductive violence in conflict

/ Dieneke de Vos / 2 Comments

A month ago, on 11 December 2019, the Colombian Constitutional Court issued an important decision recognising that women and girls who suffered forced contraception and forced abortion by their own armed groups should be recognized as ‘victims of armed conflict’. The decision is one of very few in the world to specifically recognise reproductive violence as a form of harm committed against women and girls in times of conflict. It thus sets important legal precedent in recognising a form of gender-based violence that has long remained invisible. Although the full written decision has not yet been made available, a summary of the decision has been published. In what follows, I analyse this summary.

Helena’s case

The case was brought by Women’s Link Worldwide on behalf of Helena (pseudonym), a young woman who had been forcibly recruited into the FARC at the age of 14. While with the FARC, she was forced to take contraceptives (injections) and forced to undergo an abortion when she became pregnant. She suffered significant and long-lasting health consequences as a result of the unsafe conditions in which these procedures were forcibly carried out. Continuing to suffer negative health consequences, Helena fled and was in hiding for many years until the peace deal with the government was signed. In 2017, she submitted an application to be recognised as a victim and to seek reparations under Colombia’s Law on Victims and Land Restitution (Law 1448). This law, adopted in 2011, recognizes victims of the armed conflict and confirms their rights to truth, justice and reparations. It includes provisions on the restitution of land and other reparations, and requires that special attention be paid to the needs of specific groups and communities, such as women, survivors of sexual violence, trade unionists, victims of forced displacement, and human rights defenders.

The agency charged with the registration of victims under this reparations framework (UARIV), however, subsequently denied Helena’s claim for victim status. In doing so, UARIV had relied upon an article in Law 1448 that denied victim status to members of illegal armed groups (Article 2(3)), and held that, in any case, Helena’s claim was submitted outside of applicable timelines set out in Law 1448. Helena fought this decision; while the first instance court did grant her access to government-provided medical support, her claims for recognition as a victim and for reparations under Law 1448 were dismissed in both first and second instance. She thus appealed her case to the Constitutional Court, who heard the matter in 2019, and issued this landmark decision at the end of last year. Importantly, Helena’s case was selected for review by the full panel of nine judges, rather than being decided upon by a panel of three judges. This illustrates the importance the Constitutional Court attached to the issues.

Constitutional Court’s decision

In its December 2019 decision, the Constitutional Court firstly found established that Helena was the victim of grave violations of her fundamental rights. The Court subsequently held that in dismissing her application to be registered as a victim of the armed conflict, UARIV violated Helena’s fundamental rights on two grounds. Firstly, UARIV had violated Helena’s rights as a victim by failing to interpret the applicable rules in accordance with established constitutional principles of most favourable interpretation, good faith, pro personae, and the primacy of substantive law. Secondly, UARIV failed to properly substantiate its decision by neither acknowledging the acts of forced abortion and forced displacement Helena suffered, nor by recognising that Helena’s specific circumstances constituted force majeure, preventing her from submitting an application within designated timelines.

The Court acknowledged that, on its face, Article 2(3) of Law 1448 allowed for the denial of victim status to ex-combatants who demobilised as an adult, and that, under this interpretation, Helena would have to seek reparations through other mechanisms, not including Law 1448 (as Helena fled the FARC after she turned 18). However, the Court also questioned whether this exclusion in Article 2(3) was consistent with Colombia’s obligations towards victims of the armed conflict, noting in particular the coercive nature of the practice of forced contraception and abortion within the FARC and that these acts were often perpetrated upon girls under 18, or upon young women who had only just reached the age of maturity.

According to the Court, denying Helena the right to be recognised as a victim under Law 1448, therefore, would violate her rights to access justice and to timely and adequate protection measures. Noting the principal obligation on the state to recognise victims of sexual violence as victims in such a way as to guarantee their rights to integral reparations, the Court also held that as a victim of sexual violence committed within an armed group, Helena would not have access to other avenues of reparations beyond Law 1448. As such, for the Court, registration in the Register of Victims constituted her only available avenue to adequately repair her fundamental rights.

Importantly, the Court held that the exclusion stipulated in Article 2(3) could not become an obstacle to reparations for victims of sexual violence who, as ex-combatants, were forcibly recruited into those illegal armed groups at a young age. Such a rigid interpretation of Article 2(3), according to the Court, would thus create an unconstitutional lack of protection and vulnerability. The Court also reiterated the state’s obligation to provide immediate, comprehensive, gender-sensitive and specialised health care to all victims of sexual violence by armed actors for such time as deemed necessary to overcome the physical and psychological health consequences of such violence.

For this reason, the Court relied upon the principle of declaring a ‘constitutional exception’ (‘la excepción de inconstitutionalidad’) as provided for in Article 4 of Colombia’s Constitution to overrule the applicability of Article 2(3) of Law 1448 to Helena’s case. Pursuant to this principle, when faced with a conflict between an ordinary legal norm and a constitutional norm, the Court may declare a constitutional exception to preserve rights guaranteed by the constitution in a specific case. In this case, the Court held that relying upon this principle was the only way to guarantee Helena’s fundamental rights and to find an adequate balance between Colombian law and Colombia’s international legal obligations under international humanitarian law and international criminal law. Not doing so, the Court stressed, would give rise to consequences that it held to be unconstitutional. As such, the Court rendered Article 2(3) of Law 1448 inapplicable to this specific case.

The Court thus ordered:

  • that the decision by UARIV not to include Helena in the Register of Victims be declared void;
  • that within 10 days of the date of its decision, UARIV admit Helena to the Register of Victims on the basis of her having suffered forced recruitment as a child, sexual violence (including forced use of contraceptives and forced abortion), and forced displacement;
  • that within 15 days of the date of its decision, UARIV reinstate the provision of psychosocial and medical assistance to Helena to address the emotional, mental health and physical effects of having suffered sexual violence;
  • that in the provision of integral reparations to Helena, UARIV take a gender-sensitive approach to ensure her fundamental rights; and
  • that the health services provide and guarantee access to Helena to immediate, comprehensive, gender-sensitive, specialised care for as long as necessary to address the physical and psychological consequences of the violations she suffered.

Significance of the decision

In finding in favour of Helena’s registration as a victim of the armed conflict, this case establishes that ex-combatants who were forcibly recruited into illegal armed groups and suffered sexual violence, as well as reproductive violence, within those armed groups may seek victim status and thus have access to reparations under Law 1448 – a right they did not have before – regardless of the age at which they demobilised or fled. Beyond the significance of this finding for the claimant in this specific case, therefore, this decision also sets important legal precedent in recognising that victims of sexual and reproductive violence within armed groups are victims of armed conflict. This follows earlier jurisprudence by the International Criminal Court in the Ntaganda case (here and here; see also this 2017 post by IntLawGrrl Rosemary Grey). The Colombian decision is also one of very few in the world to specifically recognise reproductive violence as a distinct form of harm committed against women and girls in times of conflict.

As part of the case, the Court received 17 expert briefs from national and international human rights organisations, women’s rights organisations, academics and international experts, including one from the author of this blog post (written jointly with Ciara Laverty). In our amicus request filing, we offered the Court a comprehensive overview of the way in which reproductive violence long remained invisible in international law, how it is increasingly being recognised, and why it should be recognised as a specific and distinct form of harm, including when committed within armed groups.

Reproductive violence is a widespread yet understudied phenomenon that occurs in times of both conflict and of peace. It can have serious physical, mental, emotional and other consequences that persist long after the violence has occurred. It is a form of victimisation connected to but also different from sexual and other violence, due to the distinct harm it inflicts and the underlying value it is said to violate, i.e. reproductive autonomy. Although reproductive violence affects individuals of all genders, there are distinct forms of harm and violence that are inflicted only upon women and girls because of and directly targeting their sex-specific biological reproductive capacities, such as forced contraception, forced abortion and forced pregnancy.

Historically, however, there have only been few instances where such violence has been independently recognised and considered. This left reproductive violence relatively invisibilised in international law. Nonetheless, current developments reflect a growing recognition that reproductive violence constitutes a distinct form of violence that should be independently recognised as violating specific, individual rights and may also constitute (international) crimes in certain circumstances. This decision by the Colombian Constitutional Court recognising the specific victimisation of female ex-combatants through forced contraception and forced abortion thus contributes to providing greater legal recognition to a form of gender-based violence that has long remained invisible in international law.

Importantly, in addition to claiming her rights as a victim through the constitutional action that was the subject of this decision, Helena has also requested participation as a victim in case 007 before the Special Jurisdiction for Peace. As such, further jurisprudence, including on individual criminal responsibility for acts of reproductive violence such forced contraception and forced abortion, may be forthcoming in Colombia.

Stay tuned!

Corporate accountability: Dutch court convicts former “Timber baron” of war crimes in Liberia

/ Dieneke de Vos / Leave a comment

On 21 April 2017, the Dutch Court of Appeal in ‘s-Hertogenbosch issued a decision holding Mr Guus Kouwenhoven, a Dutch national, responsible as an accessory to war crimes committed in Liberia and parts of Guinea between August 2000 and December 2002. The decision is one of few to address corporate accountability for war crimes. As the president of the Oriental Timber Company (OTC) and director of the Royal Timber Company (RTC), Mr Kouwenhoven supplied weapons, and material, personnel and other resources to former Liberian President Charles Taylor and his armed forces, which were used to fuel their fight against a rebel group, the Liberians United for Reconciliation and Democracy (LURD). The court held Mr Kouwenhoven liable not only for directly violating a UN arms embargo in place at the time, but equally as an aider and abettor to war crimes that were committed using the resources he provided, including rape, pillage, murder, and inhumane treatment. Here are a few highlights.

The case against Guus Kouwenhoven

The crimes for which Mr Kouwenhoven stood trial were alleged to have been committed during the second Liberian Civil War between 2000 and 2002, when Former Liberian President Charles Taylor was fighting a brutal war against LURD. The specific charges related to crimes committed in Voinjama and Kolahun in Lofa County in Liberia, as well as in Guéckédou, across the border in Guinea. Although the charges against Mr Kouwenhoven related to his having been “complicit in repeated violations of the laws and customs of war, to wit murder or rape”, the allegations covered a range of different crimes. The court noted that unnamed (co-)perpetrators, members of Charles Taylor’s armed forces, indiscriminately fired at civilians and military targets, burned houses with civilians trapped inside, cut off people’s heads, smashed babies against walls to kill them, forced civilians to undress before shooting them, and raped women and children.

As director and president of two of the largest timber companies in Liberia, Mr Kouwenhoven’s business interests were closely tied to former President Charles Taylor’s political, financial, and personal interests. Mr Kouwenhoven maintained frequent contact with Charles Taylor, who had financial interests in his two companies and frequently received payments and other resources. In exchange, Mr Kouwenhoven gained access to large swathes of territory for the exploitation of timber and was given de facto control over the Buchanan port.

The court noted that Mr Kouwenhoven used his companies to import, store, and distribute weapons in Liberia, in clear violation of the UN arms embargo. He provided trucks for the transportation of armed forces, weapons and ammunition, and facilitated the import of weapons and ammunition. He also actively encouraged his employees to support Charles Taylor, such as by unloading weapons from his ships in Buchanan and transporting them to various places in Liberia or participating actively in the fighting, and threatened those who refused with dismissal. He also allowed the armed forces access to an RTC camp, effectively used as a meeting place and a mechanism for storage and resupply of weapons to the frontline.

Corporate accountability for international crimes

Importantly, Mr Kouwenhoven is not convicted of directly perpetrating international crimes himself. Rather, the court held that he made an “active and conscious” contribution to the commission of serious violations of international humanitarian law, by the provision of material, personnel, and other resources through his businesses in Liberia. Although he had been charged in the alternative as (co-)perpetrator and as an accessory to the crime, he was ultimately convicted as an aider or abettor.

Continue reading →

#WomensMarch the Netherlands 2.0

/ Dieneke de Vos / Leave a comment

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(Photo credit: MamaCash)

This weekend, around 20,000 people gathered in Amsterdam, the capital of the Netherlands, for a second Women’s March this year, this time specifically directed at Dutch politics. With the much-anticipated (for better or worse) parliamentary elections in The Netherlands only a few days away (15 March), it was a moment for many to show their support for the world-wide movement calling for equality, inclusivity, and tolerance, raising their voices against the rise of right-wing populism fuelled by fear and hatred all over Europe and elsewhere in the world. People from all ages, genders, and backgrounds marched together from Damplein to Museumplein in a sea of orange and other colours in a spirit of comradery. Beyond a call for inclusivity and equality for all in all aspects of life, the March was also an attempt to underscore the importance of the upcoming elections, and the power we have as citizens to change the negative tide that seems to be washing over Europe. Now more than ever it is our responsibility to change these dynamics and vote against hate.

This Women’s March on Amsterdam followed in the footsteps of the Women’s March on Washington on 21 January 2017, the largest protest in US history. Hundreds of Sister Marches were organised around the world, with an estimated total number of 5 million people marching. Amsterdam’s Sister March in January drew approximately 3,000 people to the Museumplein. This time again, there were many incredibly creative signs, some specifically directed at Dutch politics, in particular Geert Wilders and his so-called Party for Freedom, others referencing broader messages of equality and justice. Like at the Women’s March on Washington, a group of women also performed MILCK’s powerful song I Can’t Keep Quiet along the route.

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(Photo credit: Women’s March Netherlands)

Speakers and performers before and after the March included Marjan Sax – long-time feminist advocate and founder of several feminist organisations, transactivist Vreer, Devika Partiman – founder of StemOpEenVrouw, Petra Benach – main organiser of the Women’s March Netherlands, and spoken word artist Babs Gons, with Anousha Nzume as MC. What I appreciated in particular was not just the broad demographic participating – from grandparents to grandchildren and everything in between – but equally the attempts made by the March organisers, as with the Women’s March on Washington, regarding inclusivity. Repeatedly calls were made during the various speeches to remember and honour those who could not, for whatever reason, join the march (such as the undocumented for fear of being arrested), and particular attention was given to those with disabilities, including an interpreter for the deaf on stage.

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(Photo credit: MamaCash)

But the March aimed at more than raising our voices for justice and equality for all. It was a call to action to the citizens of the Netherlands to vote with their conscience on Wednesday. To vote against hate and for greater diversity, because as one of the signs said “Diversity is our Strength”.

White men have dominated Dutch politics for far too long, and this problematic reality hit us again during the Party Leaders Debate on 12 March, with the party leaders of the eight biggest parties leading the polls (minus Geert Wilders of the Partij voor de Vrijheid (‘Party for Freedom’) who declined, as per usual, to participate in this debate). Of these eight parties, only one is headed by a woman (Marianne Thieme of the Partij voor de Dieren, ‘Party for the Animals’). During the 12 March debate, as the only female partly leader, she was asked “Of your fellow party-leaders, who do you think is cutest?” It was the most important televised political debate this year. Of course this question wasn’t posed to her male colleagues. Sexism to the fore, yet again! And are we surprised? Of all 28 parties participating in the elections, only three are headed by women, and two have no woman on their list at all (the one-member party Vrije Democratische Partij, not currently represented in Parliament, and the Staatkundig Gereformeerde Partij, with currently 3 seats in Parliament). At the moment, only 57 of 150 Dutch Parliamentarians (38%) is female, and if we are to believe the polls, it seems likely that this number will only go down rather than up after the Wednesday elections.

To increase the number of women in politics, a new initiative has emerged called “Stem Op Een Vrouw” (Vote For A Woman). Perhaps symbolically, 2017 also marks 100 years since women in The Netherlands gained the right to be elected to public office (although they didn’t get the right to actually vote in elections until 1922). What would be better than to reach full equality this year? As the Stem Op Een Vrouw initiative explains, a lot of people already (symbolically) vote for the first woman on their preferred party’s list. But what many people don’t realise is that voting for women high up on a party’s electoral list in the Dutch system of proportional representation won’t actually change these numbers. Our votes to the respective party will ensure that women high on the list get into Parliament in any case. Instead, we should use our preferential votes to vote strategically for women lower on a list. Only by voting for women who, without these preferential votes otherwise would not win a seat in Parliament, can we change the gender balance.

But we don’t just need more women in Dutch politics. We need more diversity in every respect. Currently only one Parliamentarian is black. There is only one trans-woman currently on the list of party members hoping to get elected. And the majority of Dutch parliamentarians are culturally “autochthonous” Dutch. This lack of ethnic, gender, cultural and other diversity is not and cannot be representative of Dutch society.

The Women’s March was one of several protests in The Netherlands calling for greater diversity and equal rights regardless of gender, background, ethnicity, nationality, or other status. As I am sure many of my fellow country-women and -men, I will be watching the election results on Wednesday evening with both fear and anticipation, knowing that Nevertheless, I persisted and voted with my conscience.

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(Photo credit: Tammy Sheldon Photography, for Women’s March Netherlands)

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(Photo credit: MamaCash)

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(Photo credit: Matilde Olsen)

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(Photo credit last two photos: Tammy Sheldon Photography, for Women’s March Netherlands)

Cross posted from EUI blogs.

ICC trial against Dominic Ongwen commences – some thoughts on narratives

/ Dieneke de Vos / 1 Comment

The trial against Dominic Ongwen, a former commander of the Sinia brigade in the Lord’s Resistance Army (LRA), started at the International Criminal Court (ICC) this week. On 6 and 7 December, Trial Chamber IX heard opening statements from the Prosecution and two teams of Legal Representatives of Victims. The Defence had requested to defer its opening statements to the beginning of the presentation of its evidence. The trial is an important one for many reasons, not least because of the difficult issue of Ongwen being a ‘victim-turned-perpetrator’ (see this post by IntLawGrrl Diane Amann). Rather than providing a detailed overview of the submissions, I want to focus on a specific issue that struck me listening to the Prosecution’s opening statements: (gendered) narratives and discourse.

As Michelle Jarvis writes in the introduction to the book Prosecuting Conflict-Related Sexual Violence at the ICTY, and as IntLawGrrl Daniela Kravetz wrote, there has been a tendency in international criminal law to focus -almost exclusively- on the sexual component of SGBV crimes when committed against female victims. This renders the violence aspect of such crimes almost invisible. On the contrary, where it concerns sexual violence against male victims, the focus has predominantly been on the violence component, as opposed to the sexual component, with such harm often characterised only as torture, or cruel treatment. These gendered dynamics have been pervasive; hence the significance of the ICC’s conviction in the Bemba case classifying rape of male victims as rape.

The Ongwen case marks another breaking point – the Prosecution has classified acts of sexual violence against women and girls not just as sexual violence (rape and sexual slavery), but as torture and outrages upon personal dignity. It has also included charges of forced pregnancy and forced marriage, two predominantly gendered (rather than sexual) crimes (see the Prosecution’s pre-trial brief for its pleadings in this respect). The Prosecution described the LRA’s systematic, institutionalised practice to abduct young women with the express aim of forcing them into an exclusive forced conjugal relationship (“forced marriage”) with LRA commanders. They were raped, forced to carry out domestic duties such as cooking or cleaning, were beaten for refusing to do so, and some bore children as a result of their repeated rapes. This policy was “vigorously enforced” within the LRA and constituted one of its “defining features”. Ongwen himself had many forced wives, some of whom were as young as 10 years old.

The Prosecution summarised in detail the testimony already given by seven of Ongwen’s forced wives to the Pre-Trial Chamber, and referred to broader contextual evidence from other witnesses who have yet to testify. Importantly, the Prosecution underscored that in using the terms (forced) “marriage” and (forced) “wife”, it did not seek to legitimise what occurred. The Prosecution stressed that, while a victim’s lack of consent “may have been obvious at first”, when they were subsequently “bludgeoned into silent submission” this did not mean the acts became consensual.

While it was thus clear the Prosecution was very aware of nuances in language, there was nonetheless a notable change in terminology in its submissions. Continue reading →

A day to remember: Ongwen’s trial starts on 6 December

/ Dieneke de Vos / 8 Comments

Tomorrow, 6 December, the trial against Dominic Ongwen will start before Trial Chamber IX of the International Criminal Court (ICC). Ongwen’s trial follows the ICC’s first conviction for rape this year, and presents a firm break with past setbacks in terms of accountability for sexual and gender-based violence (SGBV) at the Court. It will be an important and interesting trial for many reasons, too numerous to address all of them here. Let me focus on a couple relating to the SGBV charges. They are addressed in detail in the Prosecution’s pre-trial brief (I highly recommend reading it in full!) and will no doubt feature prominently during the trial. References below are to paragraphs in the pre-trial brief.

Broadest range of SGBV charges

Dominic Ongwen is an alleged senior commander in the Lord’s Resistance Army (LRA), who is charged with responsibility for war crimes and crimes against humanity committed by the LRA in various locations in Northern Uganda from at least 1 July 2002 to 31 December 2005. As I wrote earlier, he saw 70 charges confirmed against him, including for various modes of liability. It is the first time an accused faces such a high number of charges at the ICC. Many of these charges were added after the Office of the Prosecutor conducted additional investigations following Ongwen’s surrender to the ICC in January 2015. His 2005 arrest warrant contained only seven charges, none of which were for SGBV.

With now 19 of the 70 charges against him relating to SGBV, it is also the first time an accused faces such a broad range of SGBV charges at the ICC: they include several counts of rape, sexual slavery, enslavement, forced marriage, torture, outrages upon personal dignity, and forced pregnancy. Eleven of these 19 SGBV charges relate to crimes Ongwen personally committed as a direct perpetrator (again, a first at the ICC – all other individuals charged with SGBV were/are either charged as indirect (co)perpetrators or under the theory of command responsibility). The other SGBV charges relate to the LRA’s conduct more generally for which Ongwen is held responsible (in the alternative) as indirect co-perpetrator, for ordering, or under the theory of command responsibility.

Forced marriage

Ongwen is the first person at the ICC to face charges of forced marriage. While not a specific crime under the Rome Statute, forced marriage is charged as the crime against humanity of ‘other inhumane acts’. The Prosecution’s pre-trial brief describes an elaborate structure through which young girls abducted by the LRA were distributed among commanders to serve as ting-tings (if they were very young) and subsequently as forced wives (although many witnesses also described that girls could become wives at any age). Soldiers were given ‘wives’ by Ongwen as rewards for ‘work[ing] well in attacks and battle’ (131). Continue reading →

Another first at the ICC: convictions for offences against the administration of justice

/ Dieneke de Vos / 1 Comment

This year has been a year of firsts for the International Criminal Court (ICC). The ICC delivered its first conviction for sexual violence (including based on rape of men) and the first for command responsibility in the case against Jean-Pierre Bemba Gombo (Bemba) in March. That same month, it also confirmed the highest number of charges against an accused person to date, including the broadest range of sexual and gender-based crimes, in the case against Dominic Ongwen. He is the first person ever in international criminal law to stand trial for charges of forced pregnancy, and the first before the ICC to face charges of forced marriage. His trial is scheduled to commence in December 2016. In September, the Court pronounced its first conviction for the war crime of intentionally directing attacks against religious and historic buildings in the Al Mahdi case, after his admission of guilt earlier this year (yet another first!). Just last week, the ICC held its first reparations hearings in the case against Thomas Lubanga Dyilo. And yesterday, 19 October 2016, saw the ICC’s first conviction for offences against the administration of justice in the case against Bemba et al.

Bemba, a former Congolese Vice-President, stood trial together with Aimé Kilolo Musamba, his former Defence counsel, Jean-Jacques Mangenda Kabongo, a former member of his Defence team, Fidèle Babala Wandu, a member of the DRC Parliament, and Narcisse Arido, a former potential witness for the Defence. Together they were accused of intentionally corruptly influencing 14 Defence witnesses and presenting evidence they knew to be false to the Court in the ‘main case’ against Bemba, which involved his responsibility for crimes committed by forces under his command in the Central African Republic in 2002-2003, and for which he was convicted in March.

Offences against the administration of justice under Article 70, although not one of the core crimes of the Rome Statute, appear to have become an issue in almost all cases before the ICC, and cannot be left unaddressed. While ideally the ICC should not be spending its already stretched resources on non-core crime issues, these cases are important because they send a message that the ICC will not allow interference with or obstruction of its procedures. Witness intimidation has very serious consequences even beyond the immediate case it affects. The security of witnesses and the ability of the ICC to ensure their safety is critical for witnesses to continue to come forward and testify. Leaving such instances unaddressed can not only jeopardise the ICC’s investigations and prosecutions into core crimes, but leave victims of these crimes exposed to increased security risks and intimidation. As Presiding Judge Schmitt said prior to issuing the Chamber’s verdict: “Such offences have significance because criminal interference with witnesses may impede the discovery of the truth in cases involving genocide, crimes against humanity and war crimes. They may impede justice to victims of the most atrocious crimes and ultimately may impede the Court’s ability to fulfil its mandate.”

In its judgment, Trial Chamber VII described the means of witness interference used by the defendants, which included the abuse of the Registry’s privileged phone lines in the ICC detention centre, the provision of secret phones to witnesses to remain in contact in violation of no-contact-orders, illicit transfer of money or provision of material benefits to witnesses, the promise of money and relocation to Europe in exchange for witnesses’ testimony, and the coaching, scripting, dictating and correction of witness testimony. The Chamber found that Bemba, Kilolo and Mangenda, as co-perpetrators, were part of this common plan to corruptly influence 14 Defence witnesses in the main case against Bemba, and presenting their false evidence to the Court. They also tried to interfere with the Prosecution’s investigations into these Article 70 offences, and systematically tried to circumvent measures put in place by the Chamber to guarantee the integrity of proceedings. Babala and Arido, although not part of the common plan, made efforts to contribute towards this goal. The Chamber thus found Bemba, Kilolo and Mangenda guilty as co-perpetrators of corruptly influencing Defence witnesses and inducing or soliciting their false testimony under Articles 70(1)(a), (b) and (c). Babala was convicted of having aided in the commission of the offence of corruptly influencing two Defence witnesses under Article 70(1)(c); Arido was found guilty of having corruptly influenced four Defence witnesses under Article 70(1)(c).  Continue reading →

Putting the “Woman Question” front and centre: Professor Ruth Rubio Marín

/ Dieneke de Vos / 1 Comment

SOU-Ruth

On 5-7 May 2016, the European University Institute in Florence, Italy, hosted the sixth edition of the State of the Union, a space for high-level reflection on Europe. This year, these reflections revolved around the topic of Women in Europe and the World. There were many amazing and strong women who spoke at this conference, such as Valerie Amos and Patricia Sellers, and the various panels featured fascinating discussions on topics such as women in conflict, women and transition in the Middle East, migration, employment and social affairs, or sexual and reproductive politics. One particular highlight of the conference was the State of the Union address on day 2, given by Professor Ruth Rubio Marín (pictured above), who holds the chair of Constitutional and Public Comparative Law at the European University Institute. Her powerful speech was rewarded with what seemed like a never-ending standing ovation. It was well deserved. I highly recommend listening to the address in full, but here are some highlights.

In her speech, Professor Ruth Rubio Marín highlighted the injustices women and girls in Europe and the World face on a daily basis in a very straight forward manner. For those of us working on issues of gender equality and women’s emancipation and rights, the statistics Professor Rubio Marin provided were all too familiar. One in three women will suffer some form of physical or sexual violence at least once during their lifetime, and for one in five women, this violence occurs at the hands of a current or former partner. Yet, only 14 per cent of women report their most serious incident of intimate partner violence to the police. Women receive only 84 cents to every euro men earn, and the pension gap between women and men is 38 per cent. Working men devote only 9 hours a week to unpaid care and household duties, compared to 26 hours a week for working women. The gap in care responsibilities when high-wage women enter the labour market, is often filled by migrant women, thus perpetuating global (gender) inequalities. Women still account for only 20 per cent of company board members of the largest publicly listed companies, and on average only 28 percent of parliamentarians around the world are women. Androcentric values remain systematically privileged over those traditionally seen as ‘feminine’. As Professor Rubio Marín so rightfully stated: “Oppression does not only happen in cases of a cruel tyrant with bad intentions. Indeed, a well-intentioned liberal society can place system-wide constraints on groups and limit their freedom, relying not only on overt rules but also on unquestioned norms, habits and symbols.”

But what struck me most about her address was her courage and honesty. The personal became the general, the general the personal. When speaking about the by now well-known statistics about the number of women who have suffered some form of physical or sexual violence (1 out of 3), she bravely said: “Ladies and gentlemen, I have never said so publicly, but the time has come to unite and end any form of silence. I was one in the ones out of three.” And when addressing the gender pay gap, she directly addressed the president of the European University Institute, Professor Joseph H.H. Weiler, saying: “The gender pay gap is perpetuated by the generalised practice of lack of transparency around payment by almost every employer, including our beloved European University Institute. Dearest president, perhaps the time has come to change that?”

By drawing on these experiences, Professor Rubio Marín made the numbers we so often hear personal, perhaps making it a little easier for those more unfamiliar with the statistics to grasp their meaning. I could not help but notice that the majority of speakers on the second day of the conference, held at Palazzo Vecchio, were men (14 men versus 13 women spoke on day 2). I hope we can count on all of them in the struggle for gender equality, both in Europe and in the World. Women remain an oppressed group, and it is up to all of us together to change that. To paraphrase Professor Rubio Marín: Now, more than ever, we must put the “Woman Question” front and centre, both in Europe and in the World.

  • Listen to Professor Ruth Rubio Marín’s speech in full
  • Get a written copy of the speech

A Week of Firsts at the ICC

/ Dieneke de Vos / 3 Comments

It has been a successful week for the International Criminal Court (ICC). On Monday 21 March 2016, Trial Chamber III convicted Jean-Pierre Bemba Gombo as military commander for rape, murder, and pillaging committed by troops under his command in the Central African Republic. Two days later, on 23 March, Pre-Trial Chamber II confirmed all 70 charges against Dominic Ongwen, committing him to trial. Then, on 24 March, Pre-Trial Chamber I issued the confirmation decision in the case against Ahmed Al Faqi Al Mahdi for the destruction of cultural property in Mali. All of these cases have set important precedents: it has been a Week of Firsts for the ICC.

Two firsts in the Al Mahdi case

  • The confirmation of a charge of the war crime of intentionally directing attacks against ‘cultural property’ in Timbuktu (Mali) against Al Faqi Al Mahdi was the first such crime to be confirmed at the ICC.
  • His trial would have been the first regarding the destruction of cultural heritage. Would have been, because on 1 March, Al Mahdi indicated his wish to plead guilty. But that brings us to another first: his will be the first guilty plea at the ICC. If the Trial Chamber accepts his admission of guilt under article 65, the case will proceed to sentencing.

Three firsts in the Bemba case

  • Jean-Pierre Bemba Gombo’s conviction of rape, murder, and pillage was the first time at the ICC that an accused person was convicted of sexual violence.
  • His conviction was also the first ever in international criminal law to classify rape of men specifically as sexual violence (as opposed to other inhumane acts or torture).
  • Bemba was tried and convicted as a military commander for crimes committed by troops under his command for his failure to prevent, repress or punish their commission. Another first!

Four firsts in the Ongwen case

  • Dominic Ongwen saw 70 charges confirmed against him, including various modes of liability. It is the first time an accused faces such a high number of charges at the ICC.
  • With 19 of the 70 charges relating to sexual and gender-based violence, it is also the first time an accused faces such a broad range of sexual and gender-based violence charges. He faces several charges of rape, sexual slavery, enslavement, forced marriage, torture, outrages upon personal dignity, and forced pregnancy.
  • Ongwen will be the first person ever in international criminal law to stand trial for forced pregnancy. Although forced impregnation as a strategy in war and conflict is not new, the ICC’s Rome Statute was the first to codify it as a specific crime.
  • Ongwen is also the first person at the ICC to face charges of forced marriage. While not a specific crime under the Rome Statute, the Chamber concurred with the Office of the Prosecutor that forced marriage constitutes an “other inhumane act” as a crime against humanity. The decision explores in some detail the elements of the crime of forced marriage, which for the Chamber revolves around forcing a person to serve as an exclusive conjugal partner. Importantly, the Chamber stressed that it is not predominantly a sexual crime. His trial will undoubtedly expand upon international criminal law’s understanding of this crime.

It has certainly been an exciting week for the ICC!

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

/ Dieneke de Vos / 3 Comments

Yesterday was a day of firsts for the International Criminal Court (ICC). Jean Pierre Bemba Gombo’s conviction is the ICC’s first for sexual violence (see part 1 of this post), including against men. And, not only that, it is the first conviction of a military commander for crimes committed by soldiers under his command – Bemba did not commit any of the crimes himself. Here are some highlights in relation to this second important issue.

First conviction for command responsibility

As I wrote earlier, Bemba stood trial (and was convicted) as President and Commander-in-Chief of the Mouvement de libération du Congo (MLC) for three counts of war crimes (murder, rape, and pillaging) and two crimes against humanity (murder, and rape) committed by MLC soldiers in the Central African Republic (CAR) in 2002-2003. The MLC had entered the CAR to assist then CAR President Ange-Felix Patassé to suppress an attempted military coup. There, the MLC soldiers engaged in a campaign of pillage, murder, and rape against the civilian population. While he did not commit these crimes himself, Bemba stood trial because “he knew” that his troops were committing these crimes, and “did not take all necessary and reasonable measures within his power to prevent or repress their commission”. He is the first person to have been charged at the ICC with command responsibility under article 28 of the Rome Statute. The Trial Chamber included a detailed analysis of the applicable law under article 28, and of the evidence in relation to Bemba’s responsibility.

The Chamber found that Bemba was the MLC’s military and political leader from its creation throughout the entire period of the charges. He took the most important decisions, and held broad formal powers, including controlling the MLC’s funding and issuing operational orders to commanders in the field. The Chamber stressed: “the determination of whether a person has effective authority and control rests on that person’s material power to prevent or repress the commission of crimes or to submit the matter to a competent authority” (698). It found that Bemba maintained such primary disciplinary authority over his troops in the CAR, and that he was “both a person acting as military commander and had effective authority and control over the contingent of MLC troops in the CAR throughout the 2002-2003 CAR Operation” (705).

The Chamber also discussed a broad range of evidence proving Bemba’s knowledge of the commission of crimes by the MLC, including logbooks and intelligence reports, NGO publications and communications, and local and international media sources (706-718). Bemba was in regular communication with his commanders in the field, received updates on troop movements, politics, combat situation, and allegations of crimes, and at times specifically discussed these international reports with his commanders. As it was clearly established that Bemba knew crimes were being committed, the Chamber felt it was “not warranted” to make determinations on the “should have known” element of article 28(a).  Continue reading →

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

/ Dieneke de Vos / 18 Comments

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. Continue reading →