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

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

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

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

Casas de la Memoria to Conviction?

From “casas de la memoria” in Guatemala, Peru, and El Salvador to an upcoming international colloquium in Spain entitled “From Past to Future: Memory and the Process of Transition,” the development of collective memory – an enduring and shared memory of events – is taking center stage as one path toward healing the wounds of a tattered national conscience and preventing the recurrence of mass atrocities. But to what extent is collective memory compatible with judicial systems, which tend to be very individual-centered?

An annual online symposium co-hosted by Opinio Juris and NYU Journal of International Law and Politics (JILP) that went live this morning is exploring this very question. The focus of the symposium is The (Re)collection of Memory After Mass Atrocity and the Dilemma for Transnational Justice, my article that was recently published in Volume 47, Number 4, of NYU JILP.

The impetus for this article arises from the challenges I encountered in working with survivors of mass atrocity. The indivisibility of their memory struck me, as did the healing and bonds it generated. As I began to examine the literature on collective memory, I realized that I was not alone in this observation. Scholars from disciplines ranging from sociology to clinical psychology have written about and documented collective memory and its cathartic effects.

My article explores the tension between the preservation of collective memory and another impulse that follows mass atrocity: the desire for justice. Because many judicial systems are heavily influenced by notions of individualism, they are by design ill equipped to accommodate collective memory. Traditional rules of evidence and professional conduct often exhibit a single-minded focus on individual representation by replicating models that assume one client who autonomously makes legal decisions without consulting his or her community. Bound by these rules, attorneys must disrupt or even dismantle collective memory, thereby retraumatizing their clients.

In this article, I offer an alternative. I believe that human rights attorneys should instead endeavor to preserve and promote collective memory. For that reason, I urge a fundamental rethinking of the law’s preference for individual memory in the context of transitional justice. I believe that the inclusion of collective memory would better serve the goals of transitional justice by facilitating a more complete understanding of the collective harms of mass atrocity and possibly advancing reconciliation.

Today and tomorrow, Opinio Juris will feature comments on my article from four distinguished scholars:

Mark A. Drumbl is the Class of 1975 Alumni Professor of Law and Director of the Transnational Law Institute at Washington & Lee University.
Naomi Roht-Arriaza is Distinguished Professor of Law, University of California, Hastings College of Law (and a fellow IntLawGrrl!Ed.).
Ruti Teitel is Ernst C. Stiefel Professor of Comparative Law at New York Law School.
Johan D. van der Vyver is the I.T. Cohen Professor of International Law and Human Rights, Emory University School of Law.

Tomorrow, I will respond to their comments. I welcome you to join the conversation by posting your thoughts here.

Sexual and gender-based violence in the Colombian conflict should not get a raw deal before the International Criminal Court

In 2014 an average of two women were raped every three days in the course of the armed conflict in Colombia. Sexual and gender-based violence is a systematic and widespread phenomenon. Yet to date there have been very few convictions for sexualized violence – especially in cases in which the perpetrator was a member of the armed forces. By failing to act, the Colombian state is denying women the protection against sexualized crimes and access to justice that it is obliged to guarantee under national and international law. The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) in The Hague has to date failed to include a comprehensive gender perspective into its assessment of the Colombian conflict. In its Interim Report on the Situation in Colombia from November 2012, the OTP acknowledged that between 2002 and 2008, members of the Colombian army deliberately killed thousands of civilians (so called “falsos positivos” cases) and classified them as crimes against humanity. The OTP also noted that rape and other forms of sexual violence can be attributed to state forces, paramilitaries and guerrilla. Regarding state forces, however, the OTP thus far considered sexual crimes only as war crimes. It remained silent on the question of whether sexual violence committed by the state forces could amount to crimes against humanity.

A comprehensive legal analysis of a conflict situation under international criminal law requires an adequate narrative of the conflict, which necessarily involves a gender perspective in order to detect and avoid patriarchal ways of applying international norms and international criminal law. The new Policy Paper on Sexual and Gender-Based Crimes (PP) by the OTP of the ICC provides a helpful tool for applying these norms without reproducing gender inequalities. The content of the PP is the achievement of long-term lobbying by feminist activists and academics and is based on a liberal rights-based approach of feminist theory. In the PP, the OTP announces its intention to integrate a “gender perspective” and “gender analysis” at all stages of its work, terms, which, however, remain rather vague. Prosecutor Fatou Bensouda recently acknowledged, “an important aspect of challenging the culture of discrimination that allows sexual and gender-based crimes to prevail is the effective investigation and prosecution of those most responsible for such heinous crimes.”

Therefore, the OTP should start implementing its PP in the Colombian case. This could have a substantive effect on preliminarily examinations in general, and on evaluating command responsibility and the admissibility criteria in particular. Continue reading

The government of Sudan, the bombing of civilians, and the silence of the international community

The recent elections in Sudan call into question the legitimacy of the government soon to be re-elected. Even if the elections had been free and fair (which they have not), the government’s legitimacy would be challenged unequivocally by the fact that the very same government currently being re-elected into power is authorising the continual and systematic bombardment of civilians who are technically part of its polity.

On average, the Sudanese government has dropped three bombs a day on rebel held territory in its Southern Kordofan and Blue Nile States since April 2012. The impact of this bombing campaign on those living in the area has been devastating. Not only do the bombs often kill or maim civilians, but they also coincide disproportionately with planting and harvesting cycles, as well as market days, suggesting a deliberate strategy to decimate livelihoods. Yet despite the disruption to the local economy, the government of Sudan refuses to allow humanitarian access to these areas, citing fears that aid would be used to support rebel fighters.

As a result, 1.7 million people – roughly half of the population of the two states – have been displaced. Those who have remained, live with the daily threat of aerial bombardment, of government land forces breaking through the rebel Sudan Peoples’ Liberation Movement–North (SPLM-N) frontline, and a chronic lack of food and medicine.

A report released today highlights the voices of civilians living in the midst of this conflict. It emphasises the devastating impact of the conflict on every aspect of people’s lives. But it also talks of the resilience and resistance of those who are living through it. Despite unrelenting attacks against them, local organisations and activists have taken it upon themselves to educate the population about the means of surviving Antonov[1] attacks, in particular by digging foxholes and learning when and where to take cover.

This resilience, in many respects, is fuelled by defiance: many people have remained in Southern Kordofan not only because the alternatives are bleak (most of those who have been displaced have fled to South Sudan, itself in civil conflict), but because they see their ongoing presence as a form of resistance to a state they believe is trying to destroy them. As a result, many aspects of day-to-day life continue in rebel held areas of Southern Kordofan, as evidenced by children going to school and markets functioning (albeit under the daily threat of bombing and with chronic shortages.)

Furthermore, the extent to which the current government of Sudan is seen to lack any form of legitimacy is reflected by the fact that civilians are putting their faith in alternative structures of government. The rebels have recently set up a civilian administration in conjunction with the military structures that already exist, which the findings in the report demonstrate are broadly accepted by the civilian population. Civilians hope that this administration will eventually create an alternative, inclusive form of governance – in contrast to those of the Sudanese state, which they see as highly exclusionary.

However, it is important not to over-romanticise this resilience which, not surprisingly, is being severely depleted. The population’s efforts have certainly helped to minimise civilian casualties and allowed many people to remain in Southern Kordofan despite the substantial impact of the conflict. But their ability to survive is also being worn away by the continuing onslaught.

While primary responsibility for what is taking place lies with the government of Sudan, it seems unlikely that they will end their military campaign in the foreseeable future – and certainly not without considerable coercion from the international community (or at least certain parts of it). But the international community has remained, for the most part, silent.

Courageous local organisations and citizen journalists have been reporting on the intolerable circumstances in which civilians live in Southern Kordofan. Yet these organisations remain limited in their external reach. Indeed, civilians caught up in this conflict are struggling to have their voices heard – or rather, heeded. With the government of Sudan blocking independent media and international organisations from the field in a deliberate effort to cover up the consequences of the violence, there is both insufficient awareness at the international level about what is taking place, and a failure to mobilise around what information is available, with reports from NGOs regularly being dismissed as biased.

One of the strongest messages that came through the research was that those living in Southern Kordofan do not want pity: they want solidarity. They want the international community to acknowledge what is taking place and work with them to end the conflict. Their resilience is not being matched by support from the international community, which appears caught between denial and helplessness. The consequent lack of decisive action is proving disastrous, and the disconnect between the standards of international humanitarian and human rights law and their lack of enforcement could not be more stark.

It is hard to see a military victory for either side any time soon. Furthermore, for as long as the government fails to put in reforms that have been demanded, for decades, by those on the peripheries within the broader context of Sudan, there will be a reason for people to fight. In this context, a stalemate is unacceptable – a stalemate that is taking an intolerable toll on a civilian population that has been depleted of most of its reserves.

So what can the international community do? Obviously, there are no easy answers. It has already tried to call the president of Sudan to account in Darfur with an arrest warrant issued by the International Criminal Court. This strategy has so far failed to reap any direct benefits to those in Darfur, let alone those in Southern Kordofan and Blue Nile. One recommendation that the report makes is for the United Nations or the African Union to conduct an independent inquiry into what is taking place. Once such an “official” body has documented the situation for themselves, key members of the international community will find it harder to dismiss the evidence of massive attacks on civilians. Maybe this will lead to action. Or maybe not. But for now it might be a step in the right direction. At the very least it would send a powerful message to the people of Southern Kordofan that the international community are aware of their plight, and it would shed some light on an increasingly dark chapter of Sudan’s already shady recent history.

(This post first appeared on OpenDemocracy https://www.opendemocracy.net/arab-awakening/lucy-hovil/silence-over-sudan%E2%80%99s-bombing-of-civilians)

[1] Antonovs are cargo aircraft designed in the Soviet Union in the 1980s. Because they are cargo planes, they lack any sort of guidance system and bombs are simply rolled out of the cargo hold, and are therefore inherently indiscriminate.

Read On! Taking Economic, Social and Cultural Rights Seriously in International Criminal Law

Evelyne Schmid, Taking Economic, Social and Cultural Rights Seriously in International Criminal Law, Cambridge Studies in International and Comparative Law, 2015.

At least sincoverpictce Amartya Sen’s economic research, it is well-known that many of ‘those who fall victim to adverse human agency are not injured by proximate violence but as a result of being compelled to live in subhuman conditions’. To address this fact, scholars and practitioners have been debating whether the mechanisms commonly used to address legacies of widespread abuse could engage with economic, social and cultural abuses. Should they be encouraged to do so? And can international law(yers) be of any help in this regard? Continue reading