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.

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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

Launch of report series on safe shelters for refugees and IDPs fleeing SGBV

I had the great pleasure of launching our research series on safe shelter from sexual and gender-based violence in forced displacement contexts today at the UNHCR NGO Consultation in Geneva.  This was the study I introduced in an IntLawGrrls post last June, as we were starting our data analysis.

Safe Haven: Sheltering Displaced Persons from Sexual and Gender-Based Violence, Comparative Report.

Safe Haven: Sheltering Displaced Persons from Sexual and Gender-Based Violence, Comparative Report.

IntLawGrrls might recall that the study was aimed at filling the gap between limited international guidance on safe shelter provision in forced displacement contexts and knowledge about what is and is not working on the ground. We had 3 main objectives:

  1. Identify and describe shelter models available to refugees, the internally displaced, and other migrants fleeing sexual and gender-based violence.
  2. Identify  challenges experienced by staff and residents in these settings and document strategies used to respond to these challenges.
  3. Explore protection needs and options for particularly marginalized victim groups, such as male survivors, sexual minorities, and people with disabilities.

To learn more about the above, we interviewed safe shelter residents, safe shelter staff, and key informants in Colombia, Haiti, Kenya, and Thailand in the first half of 2012. The case-study research culminated in five reports: four country reports and one comparative report. All are available here on the Human Rights Center website.

One of our key findings was the great diversity of existing safe shelter mechanisms – even beyond traditional safe houses. Other data concerned the tremendous work being done under shockingly constrained resources. Of course, we also documented recurrent challenges related to resource limitations, security and emotional support needs of shelter STAFF as well as residents, limited transition options,  the need for community buy-in, and the lack of coordination among shelter programs – especially between mainstream safe shelters and those serving refugees or IDPs.

Safe shelter options come in traditional and nontraditional forms.

Safe shelter options come in traditional and nontraditional forms.

In addition, we noted some of the ethical and political challenges that can arise in the provision of focused protection of a few, while in the midst of general deprivation.

Finally, we marked critical protection gaps – particularly around LGBT persons, male survivors, and persons with serious health conditions.

Protection solutions must be context-specific. For this reason, our recommendations are circumspect; we tried not to overstep the bounds of our data.  Hopefully, our exploratory study in four very distinct countries will nonetheless shed light on what is and what is not working well in those contexts, and what strategies might be helpful in similar circumstances.

So far, the heads of UNHCR’s Policy Development and Evaluation Service and the Division of International Protection have welcomed the research and say it will directly impact their thinking and programming on protection from sexual and gender-based violence. We hope so. We also hope for similar openness as we bring our research back to providers and policymakers in each case study country this month – we’ll then share their grassroots-level updates, feedback, and additional recommendations with UNHCR headquarters again in July when we’re done.