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

Women and girls must not be excluded from reparation in the Al Mahdi case

The International Criminal Justice Clinic at Melbourne Law School, run in partnership with Amnesty International, focuses on developing practical skills in gender analysis, trial monitoring, fair trial and victims’ rights advocacy.

One of the trials that we’ve been following this year is the Al Mahdi case, the first case in the International Criminal Court from the situation in Mali.

The recent reparations order in this case raises serious gender concerns, as student Adrienne Ringin argues this week on Amnesty International’s new human rights in international justice website.

As Adrienne’s post will be of interest to many Int Law Grrls readers, it’s my pleasure to cross-post it here.

Mental Health as a Target: New Amnesty Report on South Sudan

It is trite to say that conflicts and health (care) are antithetical. In addition to the direct harm to health resulting from the violence, conflicts generally decrease the resources available for public health and often exacerbate discrimination in the enjoyment of the right to health. The relationships betwesudanen conflicts and mental health tend to be less visible than those related to physical health, but no less acute.

Earlier this month, Amnesty International published the report, Our hearts have gone dark’: The mental health impact of South Sudan’s conflict. In AI’s words, the report ‘documents the psychological impact of mass killings, rape, torture, abductions and even a case of forced cannibalism, on the survivors and witnesses of these crimes’. South Sudan is engaged in a non-international armed conflict between the South Sudan People’s Army under the control of the President and an armed opposition group. Based on interviews with 161 victims of and witnesses to human rights violations, as well as mental health professionals, government and UN officials, and representatives of non-governmental organizations, AI reveals a dire lack of mental health services across the country for people in need of support and care.

Despite the vast literature on the right to health in international human rights law (see, e.g. by  Katherine H. A. Footer and Leonard S. Rubenstein, by Amrei Müller or by Pierre Perrin), it is still rare that human rights organisations provide rights-based analyses on health in conflicts in general, and on mental health in particular. As far as Amnesty International is concerned, this is the organisation’s first report specifically addressing mental health. Hence, it is very encouraging that Amnesty International is focusing on these neglected aspects of the conflict in South Sudan.

In this post, I take the opportunity to review two conceptual aspects of the report that I find particularly interesting:

  1. Harm to mental health: more than a consequence of conflict

First, the title of the report suggests (at least at first sight) that harm to mental health is primarily an impact of the conflict but not a violation itself. Harm to mental health is undisputedly – and sadly – a far too widespread consequence of many abuses of the conflict. But in light of the qualitative research documented in the report, many instances of harm to mental health do not seem to constitute ‘just’ a consequence of the conflict, but the primary intention of perpetrators. The report, for instance, documents shocking cases of government soldiers allegedly forcing people to eat human flesh and to disembowel dead bodies in exchange for their life. In such horrific examples, the infliction of mental pain and suffering is the violation itself and not an impact of other abuses. Such abuses constitute international crimes in certain circumstances, such as war crimes, torture or crimes against humanity. In the text of the report itself, Amnesty International qualifies the commission and the failure to address these deliberate acts as a violation of the respect and protect the right of the South Sudanese population to the highest attainable standard of health (chapter 6, p. 49).

As discussed elsewhere in an article with Aoife Nolan, there is a tendency in the literature to analyse economic and social rights such as the right to health not as part and parcel of past violations but from the perspective of consequences of other abuses. In other words, when economic and social abuses are considered, they are sometimes not analysed on their own terms, but rather as a secondary consequence of civil and political rights violations. This underscores the tendency to view civil and political rights abuses as the forefront issues when discussing human rights and conflicts, with economic and social rights abuses constituting their context and consequences. Remnants of such an approach can still be found in Amnesty’s new report, e.g. where the NGO points out that

‘acts such as torture, sexual violence, and unlawful killing will often have a negative impact on the mental health of “victims” (…).  In addition to being serious violations of civil and political rights in and of themselves, such acts can, therefore, also constitute violations of the right to health.’ (Emphasis added).

While entirely correct, the section outlining the relationship between the violence and the right to mental health could have started much more strongly, e.g. by explaining how some of the documented acts deliberately target people’s mental well-being. Soldiers forcing someone to drink the blood of other victims trigger the State’s responsibility for a violation of the right to mental health independent of whether or not there are also violations of civil and political rights involved in such acts.

2. The right to mental health: not just a reparations issue

Second, and here I entirely agree with the legal framing, Amnesty does not exclusively frame the need to provide for mental health services from the angle of the right to reparations. While the link between mental health and reparations features prominently in the report (as this is often the case when economic or social rights are discussed in relation to violent conflicts), Amnesty International convincingly goes beyond this approach. The NGO appropriately frames the right to mental health care services as part of victims’ right to reparations as ‘an additional specific obligation’ – in addition to the primary obligation of refraining from and preventing acts that case psychological harm. This is important because an exclusive focus on mental health services as a form of reparations would seem legally unjustified given what I argued above.4623b1a7-76d3-4f79-9e7b-fc8f38ca7210

On a side note, Amnesty’s approach to emphasise that the state has a basic obligation to refrain from and prevent acts that harm mental health finds support in concluding observations of the UN Committee on Economic, Social and Cultural Rights. Although South Sudan is not (or not yet?) a state party to the UN Covenant on Economic, Social and Cultural Rights, it is interesting that mental health is one of the few substantive issues on which the Committee has made specific statements tailored to conflict situations (for other issues and more analysis, see my article in the Netherlands Quarterly of Human Rights). It did so for the first time in 1997 when examining the report from Iraq, urging the Iraqi authorities to submit ‘concrete and comprehensive information on measures taken or foreseen in order to address the psychological and emotional problems affecting children after years of armed conflict’. More recently, the Committee recommended to Nepal and Cambodia that a higher priority be accorded to mental health care in relation to persons affected by the conflict. In 2010, the Committee also recommended that Afghanistan, if necessary, seek international cooperation to address conflict-related traumatic disorders.

 

Photo credit: Amnesty International, Justin Lynch/AFP/Getty Images

Losing Ieng Sary’s Assets

ieng sary

Ieng Sary at a pre-trial detention hearing

Most IntLawGrrls readers have seen by now media reports of the death of Ieng Sary, the former foreign minister of the Khmer Rouge, last week.   Many of these articles express concern about justice-related consequences for his victims, given that Sary was in the midst of trial at the Extraordinary Chambers in the Courts of Cambodia.  The focus has been on the trial process itself, and the harm has been portrayed as a loss of justice as victims will not have the opportunity to see Sary held guilty.

Though those concerns are important, the victims in Cambodia have another concern: the loss of Ieng Sary’s assets.  Ieng Sary was a very rich man, and was reportedly responsible for the Khmer Rouge’s finances during and after the 1975-1979 period during which the regime controlled Cambodia.  After the fall of the Khmer Rouge in 1979, Sary also benefited from the proceeds of lucrative timber and gemstone sales in the northwest of Cambodia.  He reportedly had access to a Hong Kong bank account containing (at one point) $20 million that the Chinese government sent to the Khmer Rouge.   After Sary was pardoned by the Cambodian government in 1996, his Khmer Rouge colleagues denounced him for stealing $10 million dollars, likely from this account.  At his death, he owned luxurious homes in Phnom Penh and Banteay Meanchey province. Had Sary been convicted of the crimes charged, victims might have been able to seize his assets and use them for reparations.  With his wife Ieng Thirith having been declared unfit for trial, these assets will no longer be accessible through the ECCC process.

Were the Cambodian government to request assistance obtaining these assets, the World Bank and UN Office on Drugs and Crime’s Stolen Asset Recovery Initiative might be able to track them down.  But most observers are skeptical of the Cambodian government’s willingness to do so, or their ability to then distribute Sary’s ill-gotten wealth in a transparent and fair manner.

(credit for photo above right)