ICC trial against Dominic Ongwen commences – some thoughts on narratives

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

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

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

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

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)

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)

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