Monday 21 March 2016

The Bemba Trial Judgement – A Memorable Day for the Prosecution of Sexual Violence by the ICC

In this post, Niamh Hayes writes about the significance of the sexual violence aspects of the Bemba judgment. 

For interested observers of the ICC’s efforts to investigate and prosecute conflict-related sexual violence, there has been very little to cheer about over the last 14 years. Despite the broad range of sexual and gender-based crimes contained in the Rome Statute, Prosecutor Ocampo’s early failures to pursue evidence-led investigations and tendency to develop the theory of the prosecution case in the abstract led, unsurprisingly, to a very weak record on prosecutions for crimes of sexual violence. When Fatou Bensouda took over as Prosecutor, the attrition rate for charges of sexual violence at the ICC stood at over 50%, with fewer than half of all such charges successfully confirmed for trial. Those figures have improved under her tenure, particularly following the successful confirmation of all sexual and gender-based charges in the Gbagbo and Ntaganda confirmation decisions. She also spearheaded the development of the Office of the Prosecutor’s Policy Paper on Sexual and Gender-Based Crimes, which made some important recommendations about pursuing alternative modes of liability and selecting the most appropriate legal characterisation of the charges based on the evidence. However, as of yesterday, the ICC had never entered a conviction for crimes of sexual violence.

Today is a very good day for the Office of the Prosecutor. This afternoon, Jean Pierre Bemba Gombo was convicted of rape as a crime against humanity and a war crime, due to his failure as a military commander to prevent or punish such crimes committed by MLC troops under his effective control. This represents the first ever conviction for the crime of rape at the International Criminal Court. Although rape was charged in the cases against Germain Katanga and Mathieu Ngudjolo, and although the Trial Chamber ultimately concluded that the alleged acts of sexual violence had in fact taken place, Katanga and Ngudjolo’s individual criminal responsibility for those crimes were not proven to the satisfaction of the judges and they were both acquitted on those counts. Bemba is not only the first defendant to be convicted of rape as a war crime or crime against humanity at the ICC, he is also the first person to have been held individually responsible for violations of international criminal law committed during the 2002-2003 coup in the Central African Republic.

Bemba’s conviction also represents another first, not only for the ICC but for international criminal law in general. During the trial, the Chamber heard from Witness 23, a male community leader who was raped in front of his wife and children, and Witness 69, who was raped by two soldiers for protesting the rape of his own wife. The testimony of Witness 23 is powerful and heart-rending in its own right, but is also striking for its obvious parallels to the experience and testimony of female victims of sexual violence on issues such as psychological trauma, social stigma, rejection by family members and access to appropriate medical care to treat physical complications caused by the rape. Including this testimony to support the charge of rape was an important step in the ICC’s efforts to highlight and address all forms of sexual and gender-based crimes, including the commission of sexual violence against men, a crime which is habitually ignored even at the international level.

It is even more significant to realise that the Bemba judgement represents the first time in the history of international criminal law that sexual violence against men has been charged as the crime of rape (as opposed to crimes of torture, outrages upon personal dignity or cruel treatment) or that a defendant has been convicted of rape based on the testimony of male victims. The Bemba case will go down in history as a vital precedent on that basis alone, but it also represents a hugely important step in the ICC’s broader efforts to provide greater accountability for sexual violence crimes. Prosecutor Bensouda today reiterated her personal and professional commitment to that goal: “[w]here some may want to draw a veil over these crimes I, as Prosecutor, must and will continue to draw a line under them.” The inclusion of further allegations of male rape in the Ntaganda case and extensive allegations of sexual violence against civilians in the Ongwen case are important and welcome developments in that regard.

It is also worth highlighting the mode of liability in the Bemba case. Bemba was not accused of ordering or directly perpetrating sexual violence himself; he was accused of failing to prevent or punish crimes of sexual violence committed by Mouvement de libération du Congo (MLC) troops under his control. The judges found that Bemba, as President and commander-in-chief of the MLC, had the authority to exercise effective control over MLC troops, that he had knowledge of crimes which had been committed or were about to be committed by MLC soldiers, and that his failure to take necessary and reasonable measures to prevent, repress or punish such crimes directly contributed to their commission. In essence, Bemba was convicted for what he failed to do and for what he allowed others to do, rather than what he did himself.

This represents the first conviction for command responsibility under Article 28 of the Rome Statute. The ICC has struggled with more immediate forms of liability in other cases, particularly establishing responsibility for direct and indirect co-perpetration under Article 25(3)(a) or proving that sexual violence formed part of a common plan under Article 25(3)(d). Achieving a conviction for command responsibility is based on proving the knowledge of senior political and military leaders that crimes are being or may be committed, their failure to exercise effective control over forces under their command, and their failure to use their powers or authority to either prevent such crimes or submit them to the relevant authorities for investigation and prosecution.

Article 28 is therefore a powerful means of holding senior leaders accountable for creating a “climate of acquiescence” where serious international crimes can be committed with impunity. Bemba is the most senior military or political leader to be tried or convicted by the ICC to date, and it is worth remembering that he was arrested in Belgium in 2008 pursuant to a sealed warrant. While it may not be possible to accurately measure the deterrent effect of international prosecutions, it is comforting to think that, after today, senior political and military figures who have responded dismissively or permissively to allegations of sexual violence committed by troops under their command might find themselves experiencing a sudden zeal to be seen to effectively exercise their disciplinary powers, or at least a sudden rush of anxiety about their next European shopping trip. They most certainly should not sleep as soundly as they did last night. 


Unknown said...

"It is even more significant to realise that the Bemba judgement represents the first time in the history of international criminal law that sexual violence against men has been charged as the crime of rape (as opposed to crimes of torture, outrages upon personal dignity or cruel treatment) or that a defendant has been convicted of rape based on the testimony of male victims."

Is this actually the case? Not a lawyer, but my understanding was that the ICTY in the Češic case charged and convicted the defendant of rape for, inter alia, forcing two male prisoners to perform fellatio on each other. One way or another, though, it's a very welcome development. International tribunals have been maddeningly inconsistent in their approach to male sexual victimisation. This decision lays down an important marker that will encourage people to call rape, regardless of the sex or gender of those against whom it's perpetrated, by its proper name.

JohnStuart said...

This might be a silly question but does a conviction based on command responsibility entail a lower level of culpability than direct (co)perpetration? That is to ask is the offender liable to a lesser penalty because of the less direct nature of the mode of liability?

Unknown said...

Thank you Niamh, very sound and timely.

Niamh Hayes said...

Great point about Cesic, R Douglas. It's a bit of a nerdy legal distinction but that incident was charged as 'sexual assault' rather than the crime of rape specifically. It was charged under Article 5(g), which was interpreted as including rape and other forms of sexual violence, as well as the war crime of humiliating and degrading treatment. The judges do refer to it as a rape in the sentencing judgement though, maybe it's splitting hairs on my part. All credit to the ICTY, they have a fantastic record of charging incidents of sexual violence against men, but often as you know under different legal categories. I'm just relieved to see this type of crime being unequivocally called by its proper name at last.