The International Criminal Court’s treatment of wartime sexual violence

Temps de lecture : 10 minutes

The International Criminal Court’s treatment of wartime sexual violence

22.11.2020

Written by Jeanne PRIN

Translated by Matilde Fourey

In 1994, during the 50th session of the Commission on Human Rights, the Special Rapporteur on violence against women, its causes and consequences, made the following statement: “Rape remains the least condemned war crime”^[1]HRW, “The War Within the War: sexual violence against women and girls in Eastern Congo,” June 2002. Available at: https://www.hrw.org/reports/2002/drc/».

Since then, wartime sexual violence has been included in the list of war crimes and crimes against humanity, and no less than seven resolutions have been adopted by the UN Security Council. Despite this international legal basis, the word “impunity” remains the most appropriate when it comes to wartime sexual violence. The work of the International Criminal Court (ICC), regularly targeted by strong criticism regarding its operation and slowness, is in the dock. Through an analysis of the Court’s work since it took office in 2002, this article takes stock of the ICC’s competencies and the factors restraining its work against impunity for sexual violence perpetrated in times of conflict.

International Criminal Court: jurisdiction and mechanisms

The Rome Statute of 1998 –founding text of the International Criminal Court that came into force on 1st July 2002– includes wartime sexual violence in the list of crimes against humanity and war crimes, in its articles 7 and 8. Sexual violence as defined in the Rome Statute includes “rape, sexual slavery, prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity^[2]Rome Statute, 17 July 1998, entered into force on 1 July 2002, art. 7 (g).”. The Elements of Crimes of the International Criminal Court specify that such violence is “committed by force”^[3]Provided for in Article 9 of the Rome Statute, the Elements of Crimes of the ICC clarify the content of Articles 6, 7 and 8 of the same Statute in order to assist the Court in interpreting and … Continue reading. The term “force” here implies both the use of “threat^[4]ICC, Elements of Crimes, 3-10 September 2002, art.7(1)(g)-1.” and “coercion^[5]ICC, Elements of Crimes, 3-10 September 2002, art.7(1)(g)-1.”. Sexual violence includes the sexual humiliation suffered by the Guantánamo Bay prisoners as well as the mass rapes perpetrated during the war in Bosnia-Herzegovina. It can also constitute a crime of genocide when the rapes target a particular ethnic group^[6]Ibid, art. 6(b)1.

According to the complementarity principle^[7]Rome Statute, 17 July 1998, entered into force on 1 July 2002, Preamble and Article 1., it is up to the ICC to sentence war criminals if national justice is not being served. Its jurisdiction is based on the recognition of individual criminal responsibility of those ultimately responsible (by political or military authority). The Court may be referred a crime by the Office of the Prosecutor (“the Office” or “OTP”), by States Parties or by a Security Council Resolution^[8]Ibid, art.13.. According to Article 15 of the Rome Statute^[9]Ibid, art.15 (3)., when the Prosecutor believes that an investigation should be commenced, the Prosecutor must first gather the authorization of the Pre-Trial Chamber judges. To date, the ICC has exercised its jurisdiction following this method for Kenya, Côte d’Ivoire and Georgia. A State Party may also refer a situation that they consider to be in violation of the Rome Statute to the Court’s Prosecutor. For instance, the Central African Republic (CAR) has referred twice a situation to the Court: once in December 2004, leading to the trial against Jean-Pierre Bemba for his role as military commander of the Movement for the Liberation of Congo (MLC) troops in crimes committed in CAR between 2002 and 2003. The CAR government did refer a second case to the Court on 30 May 2014, to have it investigate the resurgence of violence on its territory from 2012 onwards. In April 2004, the Democratic Republic of Congo (DRC) also referred a situation to the Court, which initiated the trial against Bosco Ntaganda for his direct and indirect role in crimes committed by the Patriotic Forces for the Liberation of Congo (FPLC), including sexual violence. Convicted in July 2019^[10]ICC, The Prosecutor v. Ntaganda, 8 July 2019, ICC-01/04-02/06., the decision is currently on appeal.

In the case of a referral by the Security Council, the five members of the Council need to unanimously vote on a resolution which will then be referred to the ICC. The Security Council can also confer jurisdiction to the Bureau to investigate the territory of a State which is not a party to the Statute. It is important to remember that it has currently been ratified by 123 countries. Sometimes, a State that has not ratified the Statute can, through Article 12(3), declare that it accepts the jurisdiction of the Court on its territory^[11]Rome Statute, 17 July 1998, entered into force on 1 July 2002, 12-3..

This possibility was exercised by Ukraine on 17 April 2014, which allowed the ICC to investigate sex crimes committed by pro-Russian and pro-Ukrainian forces on its territory.

Despite these multiple mechanisms, the victims’ silence remains the first and main obstacle to justice in the case of sexual violence. This silence is symptomatic of the nature of rape crimes. The fear of reprisals, the protection of privacy and the fear of stigmatization are all reasons not to talk about the assault. In order to overcome these potential obstacles to justice, the Rome Statute includes a mandate regarding victims and witnesses’ participation and protection. Article 68 of the Court’s Statute specifies that victims are entitled to legal assistance during the trial in order to “protect the safety, physical and psychological well-being, dignity and privacy of victims”^[12]Ibid, art.68-1.. The Court sets forth that these measures are especially applicable in cases of sexual violence^[13]Ibid, art.68-2.. Special measures are also provided for, in particular with respect to interrogation and the taking of evidence in sex crimes ^[14]ICC, Rules of Procedure and Evidence, Rules 63, 70-72 and 112 (4).. Lastly, the Bureau of the Prosecutor has a unit dedicated to gender-based violence and violence against children, formed by specialists in these fields. The ICC has therefore been given numerous legislative and technical adjustments, both adapted and favorable to an informed management of sexual violence in times of conflict. So how can we explain that the ICC’s indictments for sex crimes are still so scarce to this day?

Assessment and limits of the International Criminal Court’s actions

The first ICC conviction involving rape charges took place in 2016, in the trial against Jean-Pierre Bemba. For the Court’s Prosecutor, Fatou Bensouda, this day was “an important day for international criminal justice”^[15]ICC, “Statement of the Prosecutor of the International Criminal Court”, 21 March 2016. Available at: https://www.icc-cpi.int/Pages/item.aspx?name=otp-stat-bemba-21-03-2016&ln=en, as the consecration of her stated desire to place the fight against sex crimes at the top of her mandate’s priorities^[16]WWOW, « Il y a 7 ans – Déclaration de F. Bensouda sur la répression des violences sexuelles liées au conflit », 14 février 2019. Available at: … Continue reading. A victory that was short-lived, however: in 2018, the former vice-president of the DRC was finally acquitted for lack of effective investigation^[17]ICC, The Prosecutor v. Jean-Pierre Bemba Gombo, Case Information Sheet, Updated: March 2019. Available at: https://www.icc-cpi.int/CaseInformationSheets/bembaEng.pdf. Since the beginning of its activities, in 2002, pending the end of the Ntaganda trial^[18]Prosecutor v. Ntaganda, 8 July 2019, ICC-01/04-02/06. and considering the acquittal of Jean-Pierre Bemba, no final conviction
including charges of sexual violence has been pronounced by the Court. This assessment reveals the limits of the Court.

Lack of effective investigation is a major problem for the application of the law when it comes to sexual violence. In its article 54, the Rome Statute specifies that the Prosecutor may commence an investigation on the territory of a State (collection and examination of evidence, interrogations on the territory of a State) after being authorized by the Pre-Trial Chamber, but these investigations face numerous obstacles^[19]Rome Statute, 17 July 1998, entered into force on 1 July 2002, art.54 2.b.. The nature of the crime is one of them, as recognized by the Court in June 2014: “the investigation of sexual and gender-based crimes presents its own specific challenges”^[20]ICC, Policy Paper on Sexual and Gender-Based Crimes, June 2014. Available at: https://www.icc-cpi.int/iccdocs/otp/otp-policy-paper-on-sexual-and-gender-based-crimes–june-2014.pdf. The first obstacle is of a medical nature, as the deadlines for scientific evidence collection, such as semen, are inconsistent with the ICC’s investigation timelines in sexual violence cases. A medical fault aggravated by the weakness and difficulties encountered by health infrastructures in countries in conflict. The second difficulty is related to the perpetrator’s identification. Once the barrier of silence has been broken, although the gynecologist and Nobel Prize winner Denis Mukwege acknowledges the existence of “signature rapes”^[21]Declaration from the conference at the University of Angers in January 2018. in the DRC, victims rarely identify their attackers. These multiple obstacles to the investigation are accentuated by the Court’s lack of means, since it does not have its own international police force and regularly suffers from insufficient financial capacity^[22]Brabant (Justine), Minano (Leila), Pineau (Anne-Laure) (dir.), Impunité Zéro : violences sexuelles en temps de guerre, Paris, Autrement, 2017, p.200-201.. These limited resources force prosecutors to “make choices”^[23]Ibid, p.205-206. and to sometimes rush investigations, as was the case in the trial against Thomas Lubanga Dyilo, the Court’s first, in 2009.

Indeed, in this case, conducted under the mandate of the first ICC’s Prosecutor, Luis Moreno-Ocampo, the charges of sexual violence were not sustained for lack of evidence. Only the child recruitment charges were. A surprising priority, noted by some NGOs^[24]See joint letter to the ICC Prosecutor, “DRC: ICC Charges Raise Concerns”, 31 July 2006. https://www.fidh.org/en/region/Africa/uganda/Open-Letter-to-Mr-Moreno-Ocampoand by the Special Representative of the UN Secretary General for Children and Armed Conflict^[25]Brabant (Justine), Minano (Leila), Pineau (Anne-Laure) (dir.), Impunité Zéro : violences sexuelles en temps de guerre, Paris, Autrement, 2017, p. 206. The latter pointed out during a hearing that … Continue reading. The former Prosecutor has since acknowledged that his decision was taken in order to quickly initiate a first trial rather than “continue investigations to accumulate charges”^[26]Ibid. p.206.

Moreover, among the three methods to refer cases to the ICC, the Security Council’s resolution is the most criticized, particularly by certain NGOs who see it as a means of politicizing international justice^[27]HWR, “UN Security Council: Address Inconsistency in ICC Referrals”, 16 October 2012. Available at: https://www.hrw.org/news/2012/10/16/un-security-council-address-inconsistency-icc-referrals. The role of the Security Council has also been criticized by the current ICC Prosecutor, Fatou Bensouda, who in 2016 denounced the “Council’s inaction” regarding the prosecution of suspects of crimes committed in Darfur, which, according to her, is an “aggravating factor” for the Court’s work^[28]Statement by Fatou Bensouda, Prosecutor of the ICC, to the United Nations Security Council, on the situation in Darfur pursuant to Resolution 1593, 2005. Available at: … Continue reading. The ICC’s inaction towards the crimes committed in Syria since 2011 is particularly representative of the limits and obstacles that the Court may face. Indeed, Syria has neither signed nor ratified the Rome Statute. The only way for the ICC to circumvent this constraint and initiate investigations in Syria would be a referral by the Security Council. However, the vetoes of Russia and China are hindering the ICC’s ability to bring justice to the men, women and children raped by the Damascus regime. Nevertheless, in 2020, Germany’s resort to the principle of universal jurisdiction^[29]Universal jurisdiction allows a State to prosecute the perpetrators of serious crimes (war crimes, crimes against humanity) regardless of their nationality, that of their victims and the place where … Continue readingallowed it to commence the trial against two former members of Bashar al-Assad’s intelligence services, Anwar Aslan and Eyad Al-Gharib, on 23 April 2020^[30]Wieder (Thomas), « En Allemagne, le procès historique des tortures dans les prisons du régime syrien », Le Monde, 23 April 2020. Available at: … Continue reading, putting an end to the impunity that had hitherto surrounded these crimes. This event also put the spotlight on the ICC’s powerlessness to judge the abuses of the Syrian regime and proves the need to exploit a principle that is fundamental to the proper functioning of international criminal law: cooperation.

Cooperation at the heart of the ICC’s work in the fight against impunity

As a last resort entity, the ICC, supported by international organizations, should focus on a strategy to support national justice in the years to come. This cooperation materializes first and foremost in the Court’s complementarity principle. By promoting national judicial systems, the ICC encourages Member States to align their national legislation with the Rome Statute. Thus, in 2006, the DRC’s new Constitution included sexual violence in the list of crimes against humanity^[31]Constitution of the Democratic Republic of Congo, promulgated on 18 February 2006, Art. 15.. Cooperation is also supporting local courts through the Special Criminal Courts (SCC). Responsible for investigating and judging war crimes and crimes against humanity, in cooperation with the ICC, these mixed jurisdictions (composed of national and international magistrates) proved their worth in May 2020 in CAR, where the SCC (created on 3 June 2015) was able to make its first arrests^[32]Grilhot (Gael), « En Centrafrique, la Cour pénale spéciale passe à la vitesse supérieure », Le Monde, 26 May 2020. Available at: … Continue reading.

At the same time, an effort must be made to address a crucial but still insufficiently addressed issue: the reparation of victims of sexual violence in times of war. Article 75 of the Rome Statute stipulates that “the Court shall establish principles applicable relating to reparations”^[33]Rome Statute, 17 July 1998, entered into force on 1 July 2002, art. 75..

“In exceptional circumstances^[34]Ibid.”, the court determines the extent of the damage suffered by the victims as well as the nature (restitution, compensation, rehabilitation) and the award for reparations. A Victims’ Trust Fund was also created by the Statute^[35]Ibid., art. 79.. Reparations have “an ethical value and a strategic value in the eyes of international criminal justice, because they aim to rebuild both the individual and the collective dimensions in societies unbalanced by the war context and its economic consequences”^[36]Guillaumé (Jules), “Le droit à la réparation devant la CPI: promesses et incertitudes”, Politique étrangère, 2015/4 (Hiver), pp. 51-62. Available at: … Continue reading.

The reparations’ issue was addressed following Jean-Pierre Bemba’s conviction and is now being addressed following the indictment of Bosco Ntaganda. In September 2020, the ICC Victims’ Trust Fund launched its pilot project as part of its mandate to provide assistance in CAR. Funded by the Netherlands up to 250,000 euros, this project aims to “support victims and their families in Bangui, living in precarious conditions and suffering long-term harm as a result of sexual violence in conflict”.^[37]ICC, “The Trust Fund for Victims Launches Assistance Pilot Project in Central African Republic”, 8 October 2020. Available at: … Continue reading. “Repairing the irreparable”^[38]Jeangène Vilmer (Jean-Baptiste), Réparer l’irréparable. Les réparations aux victimes devant la CPI, Presse Universitaires de France, 2009, p.216. is only possible with the support of the State parties (voluntary donations) and civil society partners^[39]The pilot project in CAR was entrusted to the NGO Cooperazione Internazionale (COOPI)..

As a permanent body, the ICC makes it possible to judge crimes committed since the entry into force of the Rome Statute, on 1 July 2002. The continuity of the Court’s jurisdiction helps to turn it into a tool to deter and prevent crimes. The two founding principles of the Court, permanence and complementarity, make it a tool to fight against impunity for sexual crimes in war times. The trial against Jean-Pierre Bemba has been considered by some as proof that “impunity will not be tolerated”^[40]UN, “UN welcomes ICC’s first conviction for rape as war crime”, 22 March 2016. Available at: https://news.un.org/en/story/2016/03/525132-un-welcomes-iccs-first-conviction-rape-war-crime. In recognizing him as ultimately responsible, as commander of the Movement for the Liberation of the Congo (MLC), acts of sexual violence “are not considered isolated acts, but rather factors to identify widespread attack”^[41]Yzermans (Manon), « De l’importance symbolique aux limites juridiques du prix Nobel de la paix 2018 », La revue des Droits de l’homme, Actualités Droits-Libertés, uploaded … Continue reading.

The Court, in its first conviction for sexual violence, recognizing these crimes as resulting from a military order, sanctioned the use of rape as a weapon of war. On 7 November 2019, the trial and conviction of Bosco Ntaganda brought to light rapes committed by the Patriotic Forces for the Liberation of Congo (FPLC) in the DRC, and thus shed light on a subject that is still considered taboo^[42]For more information on sexual violence against men: Le Pape (Marc), « Viol d’hommes, masculinités et conflits armés », Cahiers d’Etudes Africaines, Vol.53, Cahier 209/2010, Masculin pluriel, … Continue reading, the rape of an unknown number of men by soldiers in the Kobu region^[43]ICC, The Prosecutor v. Bosco Ntaganda, 8 July 2019, ICC-01/04-02/06, V, C, 4, (c), (2)..

Trapped between a dragging bureaucracy, an ICC faced with state sovereignty and the lack of uniformity between international and national law, wartime sexual violence still suffers from the structural weaknesses of international justice. Faced with this ankylosed environment and the resurgence of rape in Syria and the DRC, the International Criminal Court’s main challenge is to establish a more successful cooperation between the Court, civil society and national justice systems. This year, the election of a new Prosecutor and the audit by a group of nine independent experts of the Court’s performance pave the way for a series of reforms of the ICC. Reforms that may fill the gaps and maximize the Court’s resources and jurisdiction on wartime sexual violence.

To cite this article: Jeanne PRIN, “The International Criminal Court’s treatment of wartime sexual violence”, 22.11.2020, Gender in Geopolitics Institute