Pillage, the Katanga judgment, gravity and the value of ‘ordinary’ household items

I came across a notable and positive development in the Katanga judgment  while I was updating my bookGermainKatanga manuscript on international crimes and violations of economic, social and cultural rights. Much has been written in the blogosphere about problematic issues of the judgment against Germain Katanga (such as the recharacterisation of charges and the interpretation of the policy requirement for crimes against humanity). See e.g. here  and here with an interesting response here. I want to focus on another particular aspect of the judgment. It concerns the actus reus of pillage as a war crime.

Gravity and the value of everyday items

Trial Chamber II emphatically pointed out that kitchen items, furniture, food, iron sheets, cattle and other goods can be essential for the daily life of survivors and are thus of great value in the specific context of the case (para. 953).

Why is this important? Pillage is one of the oldest prohibitions criminalised as a war crime. Despite the available criminal provisions, pillage continues to be a frequent occurrence in armed conflicts and is often committed with impunity. The crime has attracted renewed attention in recent years and there are ongoing initiatives to prosecute (corporate) plunder during war (e.g. see here  and here  for a case currently pending in Switzerland).

Pillage sometimes tends to be relegated to the background, considered merely to give context to other war crimes. If, for instance, a victim of rape also complains that perpetrators stole her household goods, the conventional reaction is usually to classify the victim as a victim of sexual violence ‘only’. As I argue in my forthcoming book, past approaches have tended to conceptualise abuses primarily affecting survivors’ socioeconomic well-being merely as the landscape against which abuses of civil and political rights are committed.

Yet, why not examine if the victim should be considered a victim of rape as well as of pillage, and hence, as a victim of a war crime which can overlap with violations of economic and social rights? The problem is that the pillaged property in many armed conflicts mpotsay at first sight seems of marginal value to the lawyers involved in determining what abuses deserve what kind of attention. At a closer look, ‘ordinary’ household items or a chicken can be of important practical value. Victims might desperately need their household utensils to carry drinking water from the well or the theft of livestock may have deprived victims of their only sources of protein.

Yet, some have argued that only the theft of items of a certain value are subject to ICC jurisdiction because war crimes are crimes of concern to the international community as a whole and pillaging items of ‘marginal value’ would not be covered. The added value of the clarification by Trial Chamber II in Katanga is the recognition that care must be taken to assess the practical value of property for victims. This is particularly important when the property played an important role in victims’ enjoyment of rights such as the right to food, water or shelter, including as the underlying determinants of health. The finding by the ICC Trial Chamber is a continuation of statements made by the same Trial Chamber in Bemba (Decision on the Charges, 15 June 2009, para. 317) after the ICTY in Gotovina stressed that ‘a case-by-case assessment is necessary’ (Trial Judgment, 15 April 2011, para. 1672). This evolution of the case-law on pillage demonstrates that judges  recognise the gravity of the theft of livestock and ‘ordinary’ household items.

The ICC will have further opportunities to address allegations of pillage in the case against Congolese rebel leader Ntaganda as well as in the situation of Mali, where the Prosecutor currently investigates the looting of food reserves, shops and hospital equipment.

On the Job! Physicians for Human Rights, DRC Coordinator

PHR - Physicians For Human Rights

Physicians for Human Rights, a US-based international human rights organization, has recently posted a job listing for a Democratic Republic of Congo (“DRC”) Coordinator as part of the Sexual Violence in Conflict Zones Program.  This position is based in Bukavu, DRC.

PHR launched the Sexual Violence in Conflict Zones Program, a multi-year training and advocacy initiative, in 2011, with the aim of forging coalitions among regional medical, law enforcement, and legal experts in the Democratic Republic of the Congo (DRC), Kenya, Uganda, South Sudan, and Central African Republic. The goal of the Program is to increase local capacity for the collection of court-admissible evidence of sexual violence to support local and international prosecutions for these crimes.

Among a number of other qualifications, a successful candidate for this position will have an advanced degree in international relations, medicine, public health, law, social sciences, education, or a related field;  5 years of experience in the NGO sector in Africa; 3 years of experience in a management position; and be fluent in French.

For more information on this position, click here.

To apply, send a cover letter (with compensation requirements) and resume to resumes@phrusa.org. Please include the job title you are applying for in the subject line of your email.

Sex in Peace Operations

sex in peace opsShould all sex between international personnel and local people in peace operations be prohibited? Why are peacekeepers rarely prosecuted for crimes such as rape? Should humanitarian workers be allowed to pay for sex? Should local laws or international standards determine the age of consent to sex between local people and international personnel in peace operations? My book, Sex in Peace Operations, examines the regulation of sex between international personnel and local people in United Nations peace operations through case studies of Bosnia, West Africa and the Democratic Republic of the Congo.

Over the past two decades there has been a series of scandals implicating UN peacekeepers, humanitarian workers and private military contractors in sexual exploitation and abuse of local people. Perhaps the best known of these are the cases of Cambodia and Somalia in the early 1990s, Liberia and Sierra Leone in 2002 and the Democratic Republic of the Congo (DRC) in 2004.  More recently the film The Whistleblower has publicised trafficking in women by private military contractors employed by DynCorp and seconded to the UN as international police monitors and trainers in post-war Bosnia.  Although less widely reported, there are also non-exploitative sexual relations between peacekeepers and local people.

The response to sex in peace operations has shifted over the last twenty years from an attitude that ‘boys will be boys’ to a ‘zero tolerance’ policy.  The zero tolerance policy, which appears to have been developed as a substitute for an effective legal framework, is itself highly problematic.  My book argues that the regulatory focus should be on preventing, and ending impunity for, sexual crimes committed by international personnel against local people, rather than trying to prevent nearly all sex between international personnel and local people, as the zero tolerance policy claims to do.  It suggests more responsive approaches to sex in peace operations that aim to promote the sexual autonomy of local people, particularly women and girls.