Children Born of Rape in Bemba: Can the ICC Close the Accountability Gap?

BembaChildren born of sexual and gender-based violence in situations of conflict and mass violence have, until recently, been neglected in international criminal law. These children exist in what the Secretary-General on Sexual Violence in Conflict has previously termed an “accountability gap” as the “punishment against or redress by the perpetrator rarely includes reparations for the women who were victimized or the children who were born as a result of rape”.

Such children have, however, featured in recent cases at the International Criminal Court (ICC). For instance, in the case against Jean-Pierre Bemba Gombo, leader of the Congolese Movement of Liberation of the Congo (MLC), convicted in March 2016 of war crimes and crimes against humanity for crimes committed by his troops in the Central African Republic (CAR) between 2002 and 2003, unwanted pregnancies and the birth of children were identified during sentencing as a harm of rape. This case represents the first time the ICC will have the opportunity to provide reparations to victims of rape and a recent Expert Report on reparations suggested that children born of rape should be included within this process.

Children Born of Rape in Bemba

It is unclear how many children were born of rape as a result of Bemba’s MLC crimes. Expert testimony provided during the Trial, however, identified at least four women who suffered unwanted pregnancies as a result of rape, noting that:

One victim did accept the child as being her own, so took on, shouldered that. There was another one who didn’t want to have anything to do with the child she had given birth to, and there was a third one who had an abortion. Actually, she had to do this in hiding, and that meant that there were medical consequences to that abortion. And a fourth, well, we lost track of her. We do not know what the outcome in terms of this pregnancy was.

These children, who are about 13 years old now, are in a precarious situation in terms of their own identity and family relations, as explained by the mother of one of the children during the sentencing hearing:

She doesn’t know who her father is. She doesn’t know where he is. She has no news of him. And I wonder how things will develop. I ask God if I die, what will happen to that child? The three others which I had, I know that their father’s families are there, and if something happened to me, those children could go and live with the family of their father. But when it comes to this child, what will her fate be if anything happens to me? Continue reading

Expert Report on Trauma Mental Health and Mass Rape: Prosecutor v. Bemba

The landmark judgment in the Prosecutor v. Bemba case before the International Criminal Court marks the first jurisprudence from the Court in a prosecution dedicated to redressing sexual and gender-based violence (SGBV) (see our coverage here and here).  The Human Rights in Trauma Mental Health Lab (“Lab”) at Stanford University submitted an experts’ brief in the sentencing phase of the case.  (Bemba was sentenced to 18 years’ imprisonment). My colleague Dr. Daryn Reicherter of the Stanford University Medical School Department of Psychiatry and the Behavioral Sciences testified in the case. A redacted version of the brief is now available here.

The Lab is an interdisciplinary program based at Stanford University comprising members of the Department of Psychiatry and Behavioral Sciences, the School of Law (yours truly), the Handa Center for Human Rights & International Justice, and the Palo Alto University Clinical Psychology program.  The lab faculty and staff include treating academic psychiatrists, professors of medicine, private treating psychotherapists and social workers, human rights lawyers, law professors, and graduate and undergraduate students. Lab members have thus amassed considerable expertise in trauma mental health from a range of disciplinary perspectives.

Our submission was based on our review of the evidence and trial record, including the expert reports and trial testimony of Dr. André Tabo and Dr. Adeyinka M. Akinsulure-Smith, PhD.  We situated this evidence within a comprehensive and comparative literature review on the psycho-social impact of sexual violence and other forms of extreme trauma on individuals, their families, and their communities.  In addition, we reviewed testimony from victims in the Bemba trial in order to show a direct connection between the literature, the expert testimony, and actual events in the Central African Republic (CAR). In particular, we relied upon our knowledge of empirical research that links trauma exposure with psychophysiological and neurobiological outcomes, thereby elucidating the mechanisms by which sexual violence and other forms of extreme trauma give rise to the psychosocial outcomes documented in the trial record.  The Report was informed by the Lab’s long experience treating, representing, and working with victims of severe trauma in communities wracked by massive human rights violations.  On a more hopeful note, the brief also discussed the prospects for healing, notwithstanding these grave impacts.

The Bemba trial record is replete with harrowing evidence of the scale of SGBV in the CAR in the timeframe under consideration. Women who took part in Dr. Tabo’s survey of women who presented at Bangui National Hospital, for example, described a staggering range of sexual violence at the hands of the troops under Bemba’s command and control.  These victims had been raped in their homes, while running away, and/or on their way to a relative’s home. Some victims were the target of gang rape, systematically committed.  In many cases, family and community member leaders were raped or forced to witness the rape.  All told, out of the 512 women surveyed, 408 (80%) were sexually or physically assaulted.

As discussed in more detail in the expert brief, the psychiatric literature predicts very poor functional outcomes for victims of sexual assault.  The resulting myriad of individual consequences includes psychiatric disorders such as post-traumatic stress disorder (PTSD), depression, and anxiety. Outside of these named mental health diagnoses, individuals suffer from abject feelings of hopelessness, spiritual degradation, heightened suspiciousness, persistent confusion, and fear. Victims of trauma can see themselves as vulnerable, view the world as lacking meaning, and view themselves as lacking worth.

The brief ends on an uplifting note, notwithstanding this empirical and cross-cultural research on the impact of SGBV on the human psyche. While very few men and women who are the victims of sexual violence remain unaffected by this experience, it is possible for survivors to go on to lead meaningful lives after a sexual assault with appropriate treatment and psycho-social rehabilitation.  The concept of post-traumatic growth (PTG) captures experiences of positive change that occur as a result of highly challenging or traumatic stressful life events.  PTG is a concept with roots in ancient philosophy regarding the potentially transformative power of suffering, but it has also been supported in current empirical research.  This possibility for the victims of Bemba’s subordinates underscores the importance of the current phase of the case devoted to reparations.  This will be the Court’s second reparations order; the first was issued in the Lubanga case.

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

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

Why we should be watching the ICC on 21 March

On 21 March 2016, Trial Chamber III of the International Criminal Court (ICC) will deliver the trial judgment in the case against Jean-Pierre Bemba Gombo (Bemba). It will be an important day in the life of this now 14-year-old institution. If Bemba is convicted as charged, he will not only be the first military commander to be convicted for crimes committed by troops under his command, but it will be the first conviction at the ICC for sexual violence. Both issues have been the subject of fierce litigation.

Command responsibility

Bemba stood trial as President and Commander-in-Chief of the Mouvement de libération du Congo (MLC) for five counts of war crimes and crimes against humanity 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 are alleged to have 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 or should have known” 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.

This mode of liability, however, was disputed. During the confirmation of charges hearing in 2009, the Prosecution originally submitted that Bemba was responsible as a co-perpetrator under article 25(3)(a). When the Pre-Trial Chamber, adjourning the confirmation hearing, indicated that the evidence appeared to suggest a different mode of liability, the Prosecution amended the charges, bringing both article 25(3)(a) and article 28 in the alternative. Amnesty International was subsequently accepted as amicus curiae on the issue of superior responsibility. The Pre-Trial Chamber eventually confirmed charges against Bemba under article 28, finding substantial grounds to believe that he “knew that MLC troops were committing or were about to commit crimes”.

In September 2012, the mode of liability was again the subject of discussion, this time following a Trial Chamber decision to use the controversial Regulation 55. Whereas the Pre-Trial Chamber had only confirmed charges on the basis that Bemba “knew” crimes were being committed, the Trial Chamber notified the parties and participants that it may consider the alternate form of knowledge, namely that “owing to the circumstances at the time, … [he] should have known that the forces … were committing or about to commit such crimes”. The Defence objected and sought leave to appeal, which the Trial Chamber rejected. After further back-and-forth between the Defence and the Chamber concerning the need for additional investigations, the Trial Chamber reiterated in a decision in 2013 that it had not yet made a “formal decision” on the recharacterisation. It reserved judgment on the matter for its article 74 decision. The question is thus likely to be addressed extensively in the upcoming trial judgment, and will hopefully provide important clarification on the responsibility of military commanders for the actions of their troops and for failures to prevent, repress or punish the commission of crimes.

Continue reading