Crimes against humanity

John Bolton is right (sort of)—the ICC should not be able to prosecute Americans. How US law has major gaps in domestic accountability for war crimes.

/ Alina Utrata / 3 Comments
John_Bolton_(33024357411)

US National Security Advisor John Bolton. Photo Credit Gage Skidmore.

It has long been known that US National Security Advisor John Bolton is no fan of the International Criminal Court (ICC). But today marked a dramatic step up in his rhetoric, ahead of the ICC’s decision about an investigation into possible war crimes and crimes against humanity in Afghanistan. Despite the fact than any ICC investigation will probably focus on the Taliban, the US is worried that American troops stationed in the country may be vulnerable to prosecution.

Ahead of the ICC’s announcement, Bolton claimed that the US will “ban its judges and prosecutors from entering the United States. We will sanction their funds in the U.S. financial system, and, we will prosecute them in the U.S. criminal system. We will do the same for any company or state that assists an ICC investigation of Americans.” (However, it seems unclear if the President actually has the legal authority to do this.)

John Bolton is right about one thing: the ICC should not be able to prosecute Americans for war crimes or crimes against humanity. The fact that the ICC can reveals huge gaps in the American domestic legal system’s ability to hold citizens and foreign nations residing in the US accountable for mass atrocities.

Bolton’s pronouncements to the contrary, the ICC only has jurisdiction over crimes included in its statute committed by citizens or in the territory of states party to the Rome Statute. That is why the ICC only theoretically has jurisdiction over Americans for crimes committed in Afghanistan (and not, for instance, Yemen). Furthermore, the ICC is a court of last resort. The principle of complementarity means that the ICC can only prosecute individuals if other states are unwilling or unable to prosecute them first.

Despite Bolton’s claim that his opposition to the ICC is to protect American service members, US military personnel are arguably more protected from ICC prosecution by the principle of complementarity than other American civilians. The US military’s court martial system is generally ‘willing and able’ to hold service members accountable for war crimes and crimes against humanity. However, there is a huge gap in the American legal systems’ ability to hold American civilians and foreign nationals residing in the United States accountable for crimes against humanity and war crimes committed abroad.

Continue reading →

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 →

El Salvador’s Constitutional Court Invalidates Amnesty Law; Will Prosecutions Follow?

/ Naomi Roht-Arriaza / 1 Comment

After years of deliberations, the Constitutional Chamber of El Salvador’s Supreme Court ruled on July 13 that the country’s 1993 amnesty law is unconstitutional and must be stricken. The 4-1 decision, although long expected, has caused uproar in El Salvador, where neither side in the civil war has been supportive of prosecutions for past crimes and where rampant criminality and insecurity are present-day scourges. The four-person majority of judges Sidney Blanco, Florentín Meléndez, Rodolfo González and Eliseo Ortiz, grounded the decision in the rights of the victims to access to justice, to judicial protection of fundamental rights, and to full reparations. It makes extensive use of international law, especially the jurisprudence of the Inter-American Court of Human Rights. It will provide new hope for the long-suffering victims of the country’s twelve-year civil war, but will also complicate the country’s politics and challenge a weak and compromised prosecutors’ office.

The complaint was brought by a number of NGO representatives and victims of rights violations, alleging that the amnesty law was illegally passed and violated El Salvador’s international commitments and constitution. The 1993 amnesty was passed to deal with the crimes of both sides in a civil war that cost some 75,000 lives. The amnesty was passed just three days after a U.N. sponsored Truth Commission issued its report. The Commission found that most of the massacres, assassinations, forced disappearances and torture committed had been carried out by the armed forces or by death squads connected to them.

The text of the decision

The Court first dismissed the procedural illegality argument, but used the occasion to note that the amnesty was not, as the Prosecutors’ office argued, a part of the peace accords that ended the civil war. On the contrary, those accords had stressed the need to end impunity for human rights violations. The Court thus confronted head-on one of the central myths of the country’s political classes, that amnesty was required by the peace accords. Rather, the Court held that the legislature had to balance the need for reconciliation with the need for justice for the victims. It cited with approval in this regard the 1992 Law of National Reconciliation, which provided amnesty for political crimes, but expressly excluded “grave violent events from January 1, 1980 on, which have left their mark on society, and demand the most urgent public knowledge of the truth” that were mentioned by the U.N.-backed Truth Commission.

In its July 13 judgment, the Court held that the amnesty is unconstitutional as applied to all crimes against humanity and those war crimes that violate the fundamental guarantees of Protocol II of the Geneva Conventions, committed by either side in the conflict. The amnesty violates the country’s international obligations to investigate and prosecute under the International Covenant on Civil and Political Rights, the American Convention on Human Rights, Protocol II, and the constitutional right of the victim of a crime to civil damages and to judicial protection of fundamental rights. Regarding war crimes, although Protocol II calls for the “widest possible amnesty,” that provision must be read in light of all the country’s international obligations, and the amnesty cannot be absolute. With respect to crimes against humanity, those crimes are by definition not subject to amnesty or statutes of limitations and are subject to universal jurisdiction.

Continue reading →

The Trial of Hissène Habré

/ Kerstin Carlson / Leave a comment

CAE from afarOn May 30, the Chambres Africaines Extraordinaires (CAE) will announce its verdict in the trial of Chad’s ex-dictator Hissène Habré. Conviction is expected. What will it mean?

The trial of Chad’s Hissène Habré by an ad hoc court in Senegal is making history, and more is expected in the Judgment, scheduled for May 30, 2016. Habré’s trial represents many firsts: it is the first trial of the leader of one country by courts of another, and the first exercise of universal jurisdiction in Africa. The trial is taking place before the CAE, a hybrid judicial product governed by a statute resolved between Senegal and the African Union (AU) employing Senegalese procedure and international criminal law content.

In advance of the expected judgment, this post considers three victors of the CAE, what the trial means for Chad, and what to watch in the post-judgment phase.

The CAE’s Victors:

First, the trial is a triumph for the coalition of international NGOs and Chadian victims that have agitated for recognition of state-sponsored atrocity in Chad since Habré fled in 1990, and perhaps for the broader question of universal jurisdiction more generally. Human Rights Watch’s Reed Brody, a central figure in the effort, deliberately elected Habré’s asylum in Senegal as the place to make this stand, and the trial is the result of two decades of efforts, passing through multiple domestic and international institutions (courts in Senegal, Belgium, Chad, ECOWAS, ICJ and even the fledgling African Court of Human and People’s Rights).

Second, the trial appears to be a triumph for Senegal. Nearly everyone – from foreign diplomats to the proverbial man on the street – describes the trial as “well-run”. The trial stayed within its modest 8.6 million euro budget and, provided the scheduled judgment is issued as predicted, nearly within its timeline. Witnesses appeared when planned and none of them perished or disappeared. Even the resistant Habré was effectively contained: after his first days of bitter resistance, where he fought his guards and was ultimately carried to his seat and physically restrained once there, the Chambers began seating him before the trial began. In this way, Habré’s resistance – beyond his total silence – effectively became a non-news item. Overall, the trial highlighted Senegal’s position as a long, stable democracy with a vital civil society sector, unique to the region. In an African power structure where South Africa is wealthy and Nigeria has vast resources, Senegal has further carved out a position as a regional rule of law expert.

Finally, the trial is arguably a triumph for the International Criminal Court (ICC), though it may be a Pyrrhic. To the degree that the trial follows the tenets underwriting the ICC – the appropriateness of legal responses to atrocity, and the centrality of combating impunity for leaders – the trial can be understood to shore up the ideological foundation of the ICC, and thereby its work. Senegal officially maintains its support for the ICC, and officials at the CAE and within the Ministry of Justice represent the CAE as an institution in line with, not in conflict with, the ICC. On the other hand, the trial can be read as an example of local alternatives to the ICC, and is supported by powers (the AU, Chad) that openly oppose the ICC. Moreover, the lean efficiency of the CAE stands in stark contrast to the ICC’s unwieldy behemoth. For example, the CAE’s four investigative judges, who completed the impressive work of roping international criminal law and the facts (2500 witnesses, 4000 documents) into the 160 page Ordonnance did this by themselves, with no clerks or researchers, over the space of 19 months. The Court Administration, responsible from soup to nuts, from hiring personnel to housing witnesses, has a staff of three. Continue reading →

Radovan Karadzic Convicted by ICTY Trial Chamber

/ Milena Sterio / 2 Comments

Yesterday, the Trial Chamber of the International Criminal Tribunal for Yugoslavia convicted Radovan Karadzic, former leader of the Bosnian Serbs during the 1990’s, of numerous crimes committed during the conflict.  Karadzic received a 40-year sentence; because he is 70 years old, the sentence essentially amounts to life imprisonment (unless he is released on compassionate grounds at some future point in time, but in all likelihood, even if that were to happen, he will be in his late 80’s or early 90’s by then).  The trial verdict is over 2,000 pages long and is available here.  A shorter summary of the verdict is available here, and an excellent analysis of the verdict by Marko Milanovic on EjilTalk! is available here.

This post will highlight some of the most interesting points from the Karadzic verdict.  While the fact that Karadzic was found guilty is not surprising to anyone in the academic community, a few more nuanced points from the verdict are worthy of interest.  First, Karadzic had been charged with several counts of genocide, one of which (count 1) was for genocide committed against different municipalities in Bosnia.  Karadzic was acquitted of that charge.  While the acquittal in this context should not mean much – because even if he did not commit genocide in the legal sense, Karadzic still committed other numerous crimes, such as crimes against humanity, war crimes, etc., which are equally reprehensible – the acquittal on the genocide charge may be interpreted by some (Serb nationalists, in particular) as a legitimization of Republika Srpska and of some of its heinous policies.  Marko Milanovic has already made this point, and I simply repeat and emphasize it here.  What I would add though is that the Karadzic case can serve as guidance to future international criminal tribunals’ prosecutors in the following sense: the crime of genocide is notoriously difficult to prove, and prosecutors would be much better off, in many cases, if they charge defendants with crimes against humanity and win “easy” convictions.  An acquittal on the charge of genocide can be much more harmful to the affected region and can contribute toward fueling nationalistic tensions and hatred.  Trying to win a genocide conviction simply because of the symbolic value that this type of conviction and “label” may carry is not worth the risk of acquittal on the same charge, especially in places like Bosnia where resentments still linger and where true reconciliation may be decades away.

Second, the Karadzic case is interesting because of the genocide conviction on a separate count – Karadzic was actually convicted of genocide because of his role in the Srebrenica massacre.  The trial chamber held that Karadzic was a participant of a joint criminal enterprise “who agreed to the expansion of means so as to encompass the killing of the men and boys intended to kill all the able-bodied Bosnian Muslim males, which intent in the circumstances is tantamount to the intent to destroy the Bosnian Muslims in Srebrenica.” (para 5741).  The trial chamber then established that Karadzic had the requisite intent to commit genocide at Srebrenica, as a participant in the said joint criminal enterprise, based on conversations which Karadzic had with Miroslav Deronjic, an official appointed earlier as a civil administrator of Srebrenica.  From these conversations, the trial chamber infers that Karadzic both knew that the massacre was about to happen, and had the intent for it to occur.  The relevant language, which Marko Milanovic quoted in his post already, and which I choose to reproduce here, because of its legal significance is as follows:

“The Chamber therefore takes particular note of the fact that, despite his contemporaneous knowledge of its progress as set out above, the Accused agreed with and therefore did not intervene to halt or hinder the killing aspect of the plan to eliminate between the evening of 13 July and 17 July. Instead, he ordered that the detainees be moved to Zvornik, where they were killed. Moreover, once Pandurević reported on 16 July that he had opened a corridor to allow members of the column who had not yet been captured or surrendered to pass through, Karišik was promptly sent to investigate and the corridor was closed within a day. Finally, the Chamber recalls that although he touted the opening of the corridor when speaking to the international press, in a closed session of the Bosnian Serb Assembly held weeks later, the Accused expressed regret that the Bosnian Muslim males had managed to pass through Bosnian Serb lines. Accordingly, the Chamber considers that the only reasonable inference available on such evidence is that the Accused shared with Mladić, Beara, and Popović the intent that every able-bodied Bosnian Muslim male from Srebrenica be killed, which, in the Chamber’s view, amounts to the intent to destroy the Bosnian Muslims in Srebrenica.”

This is significant for the purposes of defining the requisite mens rea for genocide.  Genocide is notoriously difficult to prove because a defendant must have the highest mens rea, intent, to kill or harm in other ways members of protected groups, because of their membership in such groups.  Here, the trial chamber seems willing to infer such intent, presumable because Karadzic knew that the massacre was about to be committed but did nothing to stop it, and because, according to the trial chamber, he must have shared the genocidal intent with other participants of this joint criminal enterprise.  If one accepts the idea that one of the most fundamental goals of international criminal justice is to secure the highest level of convictions against those who commit atrocities, and that the most significant conviction is that of genocide, then one would support the argument that the definition of genocide should be interpreted more loosely, to allow for inferences of this sort.  If one thinks, on the other hand, that rule of law is the most important thing and that legal definitions should be interpreted strictly, then one may take issue with the trial chamber’s liberal approach in finding a genocidal intent based on inferences.

What is almost certain is that the Karadzic team will appeal the verdict on some of these grounds and will hope for a partial reversal and a reduction of the sentence.  What is also certain is that Karadzic participated in the commission of some of the worst atrocities in Bosnia and that his conviction in general is a victory for international criminal justice.

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 →

Guilty Verdict in Guatemala Trial on Sexual Slavery and Sexual Violence as Crimes Against Humanity

/ Naomi Roht-Arriaza / Leave a comment

After almost a month-long trial, Judge Yassmin Barrios and her two colleagues on February 25 found two military officers guilty of crimes against humanity in the form of sexual violence, sexual slavery and domestic slavery against 11 Maya Q’eqchi’ women. The defendants, former Col. Esteelmer Francisco Reyes Girón and former military commissioner (local army representative in rural areas) Heriberto Valdez Asig, were sentenced to 120 and 240 years in prison, respectively. The first was also found guilty of the murder of Dominga Coc and her two young girls, while the second was also convicted of the forced disappearance of seven men, who were the husbands of the women. The defendants were convicted for both direct participation and for their roles as those in charge of the base.

As narrated in an earlier post, the case had its origins in the families’ efforts to establish legal title to their lands in eastern Guatemala. Local landlords called in the army, which treated the local population as “guerrillas,” detaining the men, who were never seen again. Once the men were captured and disappeared, the women were considered fair game. They were moved to the outskirts of the military base, where they were forced to take turns cooking, cleaning and being raped by soldiers. The judgment found that the victims’ accounts of the rapes, corroborated by former soldiers and men who had been imprisoned and tortured in the military base of Sepur Zarco, were credible and proved the elements of the crime.

Guatemala’s penal code art. 378 is a hybrid of crimes against humanity and war crimes, and includes “inhuman acts against a civilian population.” Earlier cases had established that unenumerated acts could constitute inhuman acts even if not explicitly described in the law, so long as they were criminalized in national or international law. The prosecution and civil complainants (a coalition of women’s groups) presented expert evidence on the criminal nature of sexual violence, sexual slavery and domestic slavery under international law, on the political roots of the crimes in land issues, on military structure and other themes.
At trial, the women covered their faces with traditional shawls to hide their identity. Supporters noted that the women had been subject to stigma and isolation when they returned to their communities, while defense lawyers tried to paint the women as prostitutes who were now seeking to cash in on reparations payments with the support of foreign NGOs. The judges would have none of it, recognizing the courage of the women “for appearing, testifying and publicly denouncing the multiple sexual attacks to which they were subject, which have undoubtedly left them with irreversible post-traumatic stress.” The judges found that the women were treated as war booty, and that the fact that they no longer had husbands made them available, in the eyes of the military, for any kind of abuse.
0b197ffc-afde-4014-85b7-818c0c6869b6_749_499“Acknowledging the truth helps to heal the wounds of the past and the application of justice is a right of the victims and helps strengthen the rule of law in our country, creating awareness that these types of crimes should not be repeated,” Judge Barrios declared.
This is the first case in a national court convicting military defendants for crimes of sexual violence and sexual slavery committed against their own citizens. As discussed here and here, international and internationalized criminal courts to date have been reluctant to, and not very good at, charging and proving these crimes, although upcoming cases may change that. It shows the importance of long-term work with groups of victims – one of the coalition of groups, ECAP – had been providing psychosocial help to the victims for over a decade. It brought together women’s groups (another of the civil complainant groups is called Women Transforming the World), groups working with indigenous women, and human rights groups. And it showed the importance of insisting on making national courts do their job, fighting impunity even under very difficult circumstances.

 

Why we should be watching the ICC on 21 March

/ Dieneke de Vos / 6 Comments

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 →