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

ICC trial against Dominic Ongwen commences – some thoughts on narratives

The trial against Dominic Ongwen, a former commander of the Sinia brigade in the Lord’s Resistance Army (LRA), started at the International Criminal Court (ICC) this week. On 6 and 7 December, Trial Chamber IX heard opening statements from the Prosecution and two teams of Legal Representatives of Victims. The Defence had requested to defer its opening statements to the beginning of the presentation of its evidence. The trial is an important one for many reasons, not least because of the difficult issue of Ongwen being a ‘victim-turned-perpetrator’ (see this post by IntLawGrrl Diane Amann). Rather than providing a detailed overview of the submissions, I want to focus on a specific issue that struck me listening to the Prosecution’s opening statements: (gendered) narratives and discourse.

As Michelle Jarvis writes in the introduction to the book Prosecuting Conflict-Related Sexual Violence at the ICTY, and as IntLawGrrl Daniela Kravetz wrote, there has been a tendency in international criminal law to focus -almost exclusively- on the sexual component of SGBV crimes when committed against female victims. This renders the violence aspect of such crimes almost invisible. On the contrary, where it concerns sexual violence against male victims, the focus has predominantly been on the violence component, as opposed to the sexual component, with such harm often characterised only as torture, or cruel treatment. These gendered dynamics have been pervasive; hence the significance of the ICC’s conviction in the Bemba case classifying rape of male victims as rape.

The Ongwen case marks another breaking point – the Prosecution has classified acts of sexual violence against women and girls not just as sexual violence (rape and sexual slavery), but as torture and outrages upon personal dignity. It has also included charges of forced pregnancy and forced marriage, two predominantly gendered (rather than sexual) crimes (see the Prosecution’s pre-trial brief for its pleadings in this respect). The Prosecution described the LRA’s systematic, institutionalised practice to abduct young women with the express aim of forcing them into an exclusive forced conjugal relationship (“forced marriage”) with LRA commanders. They were raped, forced to carry out domestic duties such as cooking or cleaning, were beaten for refusing to do so, and some bore children as a result of their repeated rapes. This policy was “vigorously enforced” within the LRA and constituted one of its “defining features”. Ongwen himself had many forced wives, some of whom were as young as 10 years old.

The Prosecution summarised in detail the testimony already given by seven of Ongwen’s forced wives to the Pre-Trial Chamber, and referred to broader contextual evidence from other witnesses who have yet to testify. Importantly, the Prosecution underscored that in using the terms (forced) “marriage” and (forced) “wife”, it did not seek to legitimise what occurred. The Prosecution stressed that, while a victim’s lack of consent “may have been obvious at first”, when they were subsequently “bludgeoned into silent submission” this did not mean the acts became consensual.

While it was thus clear the Prosecution was very aware of nuances in language, there was nonetheless a notable change in terminology in its submissions. Continue reading

A day to remember: Ongwen’s trial starts on 6 December

Tomorrow, 6 December, the trial against Dominic Ongwen will start before Trial Chamber IX of the International Criminal Court (ICC). Ongwen’s trial follows the ICC’s first conviction for rape this year, and presents a firm break with past setbacks in terms of accountability for sexual and gender-based violence (SGBV) at the Court. It will be an important and interesting trial for many reasons, too numerous to address all of them here. Let me focus on a couple relating to the SGBV charges. They are addressed in detail in the Prosecution’s pre-trial brief (I highly recommend reading it in full!) and will no doubt feature prominently during the trial. References below are to paragraphs in the pre-trial brief.

Broadest range of SGBV charges

Dominic Ongwen is an alleged senior commander in the Lord’s Resistance Army (LRA), who is charged with responsibility for war crimes and crimes against humanity committed by the LRA in various locations in Northern Uganda from at least 1 July 2002 to 31 December 2005. As I wrote earlier, he saw 70 charges confirmed against him, including for various modes of liability. It is the first time an accused faces such a high number of charges at the ICC. Many of these charges were added after the Office of the Prosecutor conducted additional investigations following Ongwen’s surrender to the ICC in January 2015. His 2005 arrest warrant contained only seven charges, none of which were for SGBV.

With now 19 of the 70 charges against him relating to SGBV, it is also the first time an accused faces such a broad range of SGBV charges at the ICC: they include several counts of rape, sexual slavery, enslavement, forced marriage, torture, outrages upon personal dignity, and forced pregnancy. Eleven of these 19 SGBV charges relate to crimes Ongwen personally committed as a direct perpetrator (again, a first at the ICC – all other individuals charged with SGBV were/are either charged as indirect (co)perpetrators or under the theory of command responsibility). The other SGBV charges relate to the LRA’s conduct more generally for which Ongwen is held responsible (in the alternative) as indirect co-perpetrator, for ordering, or under the theory of command responsibility.

Forced marriage

Ongwen is the first person at the ICC to face charges of forced marriage. While not a specific crime under the Rome Statute, forced marriage is charged as the crime against humanity of ‘other inhumane acts’. The Prosecution’s pre-trial brief describes an elaborate structure through which young girls abducted by the LRA were distributed among commanders to serve as ting-tings (if they were very young) and subsequently as forced wives (although many witnesses also described that girls could become wives at any age). Soldiers were given ‘wives’ by Ongwen as rewards for ‘work[ing] well in attacks and battle’ (131). Continue reading

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!

Confirmation of charges hearing in Dominic Ongwen case: hopeful signs for gender justice?

From 21 to 27 January 2016, the confirmation of charges hearing in the Dominic Ongwen case was held at the International Criminal Court (ICC). It is an important case for many reasons, one of which is this post’s subject: the case includes a high number of sexual and gender-based violence (SGBV) charges, which, if confirmed, would be the broadest range of such crimes ever to come to trial at the ICC. It would certainly illustrate that the positive trend in this respect that started with the Ntaganda case continues, and would consolidate important case law on these crimes.

Dominic Ongwen, an alleged senior commander in the Lord’s Resistance Army (LRA), is charged with responsibility for 70 counts of war crimes and crimes against humanity committed by the LRA in various locations in Northern Uganda from at least 1 July 2002 to 31 December 2005. Importantly, the charges include eight counts of SGBV: rape, torture, and sexual slavery as both war crimes and crimes against humanity, and forced marriage and enslavement as crimes against humanity. This makes it an important case for gender justice at the ICC. The case has the highest number of SGBV charges to date.

However, if the Court’s track-record for sexual violence charges is something to go by, we are in for a rainy day. With Ngudjolo’s acquittal in 2012, and Katanga’s partial conviction in 2014 excluding sexual violence crimes, there have thus far been no successful convictions for SGBV crimes at the ICC. This is a disappointing record for a Court that was heralded as a “model for gender justice” when its Statute entered into force.

With the Office of the Prosecutor’s (OTP) stated commitment to strengthen its investigation and prosecution of SGBV, however, there is hope that this case will be different. It follows in the footsteps of the Ntaganda case – the first case to reach the confirmation stage since Fatou Bensouda took office as Prosecutor; this was the first case in which all SGBV charges sought by the Prosecution at confirmation were confirmed. Further, in the Ntaganda case, the OTP is pushing the understandings of IHL protections around (sexual violence) crimes committed against one’s own troops. If successful, this would develop international law’s gendered understandings of child recruitment.

The Ongwen case may shed light on yet another relatively under-developed area of gender justice in international criminal law jurisprudence. It would be one of the few cases in international criminal justice to address the crime of forced marriage. While not included in the Rome Statute as a separate offence, the Prosecution has charged forced marriage as an inhumane act of similar character under Article 7(1)(k). The Prosecution alleges that the LRA pursued a policy of abducting women and young girls with the express aim of forcing them to act as wives of LRA commanders and fighters. While the OTP alleges that exclusive sexual services were an inherent part of being a forced wife, importantly, they argued that it also encompasses other, non-sexual, tasks such as household chores, cooking, and child rearing, i.e. raising new LRA fighters.  Continue reading