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ICC Assembly of States Parties Symposium: A Recap of Two Excellent Side Events

/ Milena Sterio / 1 Comment

As a delegate of the Public International Law and Policy Group, I recently attended the 18th Assembly of States Parties (ASP) to the International Criminal Court (ICC).  In addition to general debates among states parties regarding issues such as funding, election of new judges, and the general well-being of the court, various interesting side events took place, sponsored by states and NGOs.  This post will briefly highlight two such side events – the first on The Hague Principles on Sexual Violence, and the second on Timing and Duration of Decision-Making at the ICC.

The first side event, “The Hague Principles on Sexual Violence – Translating the lived experience of sexual violence survivors into law and policy,” was sponsored by Women’s Initiative for Gender Justice (WIGJ) and by Argentina, Australia, Austria, Belgium, Canada, Chile, Costa Rica, Finland, France, Ireland, Luxembourg, New Zealand, Norway, the Republic of Korea, Romania, Senegal, Slovenia, South Africa, Sweden, Switzerland, the United Kingdom, and Uruguay.

The panel was moderated by Melinda Reed from WIGJ, and panelists included Fatou Bensouda, Prosecutor of the ICC, Patricia Sellers, Special Advisor on Gender to the Office of the Prosecutor, Toufah Jallow, Toufah Foundation, Wayne Jordash, Global Rights Compliance, and Howard Morrison, ICC Judge.  Opening remarks were delivered by the Swedish Director-General for Legal Affairs, H.E., Mr. Carl Magnus Nesser, and closing remarks were delivered by the Ambassador of Australia to the Netherlands, H.E. Mr. Matthew Neuhaus.  Prosecutor Bensouda briefly spoke about her office’s efforts in prosecuting sexual violence offenders, and she emphasized the importance of the Ntaganda case, and this defendant’s conviction for crimes of sexual violence.  Judge Morrison spoke about the difficulty of prosecuting and judging cases involving survivors of sexual violence, who may be unwilling to come forward and testify because of their culture and/or because of the inherent necessity of reliving the trauma which court testimony would entail.  Special Advisor Seller highlighted the importance of case law in understanding how to prosecute future crimes of sexual violence, and Wayne Jordash described some of the difficulties associated with the international prosecution of crimes of sexual violence, as well as the failure to prosecute sexual crimes in the Lubanga cases.  The most poignant moments of this panel, however, included remarks by Toufah Jallow, a young Gambian woman who recently came forward and accused the former Gambian president of rape and sexual violence.  Ms. Jallow, who presently lives in Canada, spoke candidly about the assault, violence, and rape which she suffered at the hands of the then-Gambian president, who, according to Ms. Jallow, used sexual violence against her in order to punish her because she had rejected his offer of employment.  Ms. Jallow emphasized the necessity to use concrete language when describing circumstances of sexual assault, as well as the need to overcome cultural barriers and speak out against rape and sexual assault.  Ms. Jallow described how her own mother, who still lives in the Gambia, presently needed security, and how her mother may still believe that “a good African woman is supposed to remain silent” – event if subjected to rape and sexual violence.  Ms. Jallow confirmed that she has already testified before the Gambian national truth commission, where she has repeated the same accusation against the former president.  Finally, Ms. Jallow urged everyone to consider survivors of sexual violence as activists, and not simply as victims.

Finally, several panelists spoke about The Hague Principles on Sexual Violence, which can be found here: https://4genderjustice.org/wp-content/uploads/2019/11/The-Hague-Principles-on-Sexual-Violence.pdf 

According to some of the panelists, these Principles will hopefully become an important tool in prosecuting crimes of sexual violence.

The second side event, “It’s about time – revising the timing and duration of decision-making at the ICC,” was sponsored by the Wayamo Foundation and Austria, Finland, Germany, the Netherlands, Norway, and the United Kingdom.  Speakers included Christian Wenaweser, Permanent Representative of Lichtenstein to the United Nations, Elizabeth Evenson, Associate Director, Human Rights Watch, Lorraine Smith Van Lin, Post-conflict justice advisor, REDRESS, Shehzad Charania, Director of the UK Attorney General’s Office and International Law Advisor to the Prime Minister’s Office, and Mark Kersten, Senior Consultant, Wayamo Foundation, as moderator.  Panelists addressed the ICC’s perceived inefficiency – the court’s seemingly long disposition of various investigations and cases.  The panelists acknowledged that the ICC has handled a relatively small number of cases since its inception, and that some investigations and cases have taken a long time.  At the same time, the panelists nuanced these remarks by noting that the court was an international adjudicative body with a wide mandate and complex cases, and that because of these unique characteristics, the ICC could not be easily compared to a domestic jurisdiction which may handle cases much more speedily.  The panelists also warned that efficiency should not trump due process rights and that cutting corners within investigations, for the sake of speeding up proceedings, would not be a desirable result.

In addition to the above-described events, this year’s ASP will feature dozens of equally fascinating side events and more general debate among states parties.  Stay tuned.

 

 

 

 

 

 

ICC extends War Crimes of Rape and Sexual Slavery to Victims from Same Armed Forces as Perpetrator

/ Yvonne McDermott / 3 Comments

Readers of this blog will be interested in an important decision issued by Trial Chamber VI of the ICC in the case of Ntaganda yesterday. At issue was the Defence’s argument that the Court could not have jurisdiction over the crimes of rape and sexual slavery allegedly committed against UPC/FPLC child soldiers, because war crimes cannot be committed against combatants from the same armed forces as the perpetrator. Such crimes, the Defence argued, would come within the ambit of domestic law and human rights, and were not covered by the war crimes prohibition.

Initial appearance of Bosco Ntaganda, 26 March 2013

Bosco Ntaganda. Picture credit.

The argument, on its face, is rather convincing – the Geneva Conventions and their Additional Protocols explicitly protect certain categories of persons, principally sick, wounded and shipwrecked persons not taking part in hostilities, prisoners of war and other detainees, civilians and civilian objects. Ntaganda is charged with these crimes under Article 8(2)(e)(vi) of the ICC Statute, which defines the war crime as:

Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions;

The chapeau of Article 8(2)(e) enumerates the crimes therein as being ‘other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law’. It stands to reason, then, that we would examine that established international law framework in seeking to determine whether fellow combatants from the same armed forces as the perpetrator are protected by that framework.

Common Article 3 refers explicitly to ‘persons taking no active part in hostilities’, while Article 4 of Additional Protocol II (which contains the prohibition on outrages upon personal dignity, rape, enforced prostitution and any form of indecent assault) applies only to those ‘persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted’.

The most obvious way to resolve this issue would seem to be to acknowledge that Article 8(2)(c) and (e) crimes cannot be committed against those actively taking part in hostilities, but to argue that those victims identified in paragraphs 66-72 of the Confirmation Decision as having been abducted to act as domestic servants and, in the words of one witness, provide ‘combined cooking and love services’ were obviously not actively taking part in hostilities.

Yet, other victims mentioned in the Confirmation Decision acted as bodyguards, while other young girls abducted by the UPC/FPLC and later raped by soldiers in camps underwent military training, from which we can assume that they probably carried out some military functions. The issue here is that the Trial Chamber in Lubanga embraced a much broader definition of ‘active participation in hostilities’, in order to include a wide range of children who were forcibly recruited as victims under Article 8(2)(e)(vii). It determined, in paragraph 628, that:

Those who participate actively in hostilities include a wide range of individuals, from those on the front line (who participate directly) through to the boys or girls who are involved in a myriad of roles that support the combatants.

At the time of the Lubanga judgment, several authors noted that this expansive definition may have unintended negative consequences for the protection of children in armed conflict. For example, Nicole Urban argued that, ‘Should the sexual exploitation of and violence against child soldiers render them ‘active’ participants in hostilities under one Article, there is a real risk that they will also be considered as active participants in hostilities under the others.’ In a sense, the chickens have now come home to roost, as the Court in Ntaganda has to marry that interpretation, which seeks to protect child soldiers as victims of forcible recruitment, with an interpretation that includes them within the ambit of Article 8(2)(e) when they become victims of other war crimes.

The Pre-Trial Chamber took the position that individuals only lose their protection ‘for such time’ as they are actively participating in hostilities, and that those who were raped and subjected to sexual violence were clearly not participating in hostilities at that time. This interpretation is somewhat problematic, as it sidesteps the situation of those members of the armed groups who bear a ‘continuous combat function‘.

Trial Chamber VI in yesterday’s decision took a rather different approach, by determining that:

While most of the express prohibitions of rape and sexual slavery under international humanitarian law appear in contexts protecting civilians and persons hors de combat in the power of a party to the conflict, the Chamber does not consider those explicit protections to exhaustively define, or indeed limit, the scope of the protection against such conduct. (para. 47)

It went on to conclude that, because the prohibition of rape had attained jus cogens status under international law (para. 51), ‘such conduct is prohibited at all times, both in times of peace and during armed conflicts, and against all persons, irrespective of any legal status’, and that it did not, therefore, need to determine whether the victims were ‘members’ of the armed forces at the relevant time (paras. 52-53).

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 Judge Kuniko Ozaki, one of the three Trial Chamber judges. Picture credit.

 

This decision neatly sidesteps the issues surrounding the notion of active participation in hostilities raised by the Lubanga judgment. Yet, the conclusion that members of the same armed force are not per se excluded as potential victims of war crimes is a very expansive interpretation of Article 8, and one that is not fully reasoned in the judgment. The decision appears to be founded on two separate aspects.

The first is that not all war crimes need to be committed against protected persons (para. 37). The Chamber referenced a number of sub-paragraphs of Article 8(2)(e) in this regard, namely Articles 8(2)(e)(ix) and (x) on perfidy and denying that no quarter will be given, in support of this argument. This is not entirely convincing, as Article 8(2)(e)(ix) explicitly refers to killing or wounding ‘a combatant adversary’ treacherously. Article 8(2)(e)(x), prohibiting a declaration that no quarter will be given, is explicitly prohibited because it would result in the killing of persons hors de combat.

The second justification for the decision appears to be the widespread prohibition of rape and sexual violence under international humanitarian law. The Chamber considered that to limit the protection against rape to exclude members of the same armed group would be ‘contrary to the rationale of international humanitarian law, which aims to mitigate the suffering resulting from armed conflict, without banning belligerents from using armed force against each other or undermining their ability to carry out effective military operations.’ Given that there could be no military objective or justification to engage in sexual violence against any person, regardless of whether or not that person was a legitimate target under the law of armed conflict, the Chamber considered that the prohibition of sexual violence under International Humanitarian Law was not limited to certain categories of persons, and that anyone could be a victim of this war crime. This justification is more convincing, but leaves many questions unanswered, as it seems to be limited to the prohibition of rape (which the Chamber considered to be a jus cogens norm of international law). We might ask, for example, whether armed forces who commit acts of humiliating or degrading treatment against their own members, or who deny those members a fair trial, may now find that they are committing war crimes under Article 8 of the ICC Statute.

This decision is clearly founded in a desire to offer the greatest level of protection to victims of sexual violence in armed conflict, regardless of their status. A similar argument was made in the ICRC’s updated commentary to Common Article 3 of the Geneva Conventions, which stated that ‘all Parties to the conflict should, as a minimum, grant humane treatment to their own armed forces based on Common Article 3.’

It will certainly be interesting to see what states’ reactions to this expansive interpretation, and what the broader consequences of this decision, will be.

(Cross-posted from PhD Studies in Human Rights)

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

/ Beth Van Schaack / Leave a comment

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.

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 →

Beyond Sexual Violence: Gendered Political Insecurity as a Threat to Peace

/ Kristin Bergtora Sandvik / Leave a comment

Julieta Lemaitre and Kristin Bergtora Sandvik

Based on extensive field research in Colombia, our new article Beyond Sexual Violence in Transitional Justice: Political Insecurity as a Gendered Harm examines political insecurity as a specifically gendered harm that must be addressed in the ongoing Colombian transitional justice process.

In a previous blogpost we described the tragic plight of the women’s rights activist and survivor of sexual violence Angélica Bello. Bello was one of the main proponents of Law 18 June 2014, which sets out to guarantee access to justice for victims of sexual violence. The Law is part of the transitional justice process and seeks to bring Colombian law into harmony with international law regarding sexual violence in the context of the armed conflict. It defines crimes of sexual violence as war crimes and crimes against humanity, and sets out criteria for investigating sexual crimes and protecting survivors analogous to those of the ICC. As the peace negotiations in Havana between the government and the FARC guerrilla continue to make slow but steady progress, the sexual violence agenda increasingly captures the field of harms to women in war.

While recognizing the importance of this law, we nevertheless suggest that it is a problem for the ongoing transitional justice process that there are so few articulations of what other kinds of gendered harms may look like and how they should be effectively addressed. Much of the growing literature on gender in armed conflict and the debates over post-conflict reparations for women focuses on the prevalence and harms of sexual violence. This development has engendered controversial debates concerning the alleged prioritization of sexual violence at the expense of other harms to women, whether this debate sexualizes and infantilizes women, as well as with respect to forms of victimization not captured by feminist frames of reference, such as male rape (This is often framed as a debate between the Halley and MacKinnon schools of thought). In her work on reparations, Ruth Rubio-Marin takes issue with what she sees as an excessive emphasis on sexual violence in transitional justice, embodying both a suggestion that sexual harm is the worst abuse that can happen to women and the entrenchment of a patriarchal ideal of female chastity. Rubio-Marin (2012) argues that the ‘hyper-attention’ to sex now risks doing further harm to women by deviating attention from other non-sexual forms of sex-specific harms, and isolating sexual and gender based violence from broader agendas that confront the multiple gendered forms of harm and injustice.

What are these other gender specific harms? What should transitional justice focus on beyond sexual violence? How can we think of gendered harms in relation to poverty alleviation or of resource redistribution?

In our article, we argue that if civic trust is to be built among all citizens, women’s experience of exclusion from the political through force and intimidation must be included in the narratives of armed conflict, political insecurity and the aftermath of war. Importantly, political insecurity is complex and extends beyond conflict between the state and the guerrillas, and yet the guarantee of security of political activity is a central component of a transition to peace. Arguably, political insecurity will persist as long as there is no effective challenge to the subnational hold of illegal armed actors emerging in the aftermath of war. The insecurity fostered by these actors is gendered, enforcing cultural mandates to confine women to the domestic space. In a transition to the end of armed conflict guerrillas can stop being both a threat for community organizing, and a justification for state repression.

Finally, we also suggest that the complete dismantling of gendered political insecurity will remain a challenge for transitional justice. A just transition to peace for women would require first, the dismantling of the capacity of private powers (at least of organized crime and business interests) to use violence to achieve their economic goals, and it will also require a vigorous promotion of women’s political participation at the grassroots level. More scholarly attention to the gendered aspects of these problems and scenarios is needed as Colombia continues to stumble towards the end of its 5o year old civil war.