Are sexual and gender-based crimes still an ICC no-go zone?
At the International Criminal Court (ICC), prosecuting sexual and gender-based violence has been notoriously difficult. Documentary evidence has often proved insufficient and local officials, unwilling to cooperate. Despite such challenges, the Office of the Prosecutor (OTP), since Fatou Bensouda took over in 2012, has prioritized prosecution of such crimes.
Still, her success has been underwhelming.
Since the court began, 60 percent of the charges for sexual and gender-based crimes (SGBC) brought by the OTP have proceeded to trial. Although a decision currently pending in the Jean-Pierre Bemba case may upset the record, so far there have been no convictions. Experts have been wondering why the court appears to be lagging behind here.
A “lack of accurate data to assess the gravity of SGBC due to under- and non-reporting of these crimes” is a frequent problem, says OTP spokesperson Florence Olara. Many victims hesitate to come forward because sexual violence carries a stigma of “uncleanness” that frequently causes families and communities to ostracize them, she tells IJT.
Proving SGBC, moreover, has its own set of criteria, different from other crimes, finds Kelly Askin, a legal officer for international justice at the Open Society Foundation. “Senior leaders are often held accountable, for instance, for mass slaughter, even when they are not present when the crimes were committed. Mass rape – not so much,” she says.
A “higher threshold is applied to establish ‘beyond reasonable doubt’,” echoes Brigid Inder, who is both executive director of the Women’s Initiative for Gender Justice, which lobbies the court on gender issues, and a special gender advisor to the prosecutor.
A tool for “ethnic dominance and political supremacy”
At a recent panel discussion at The Hague Institute for Global Justice, Inder used the Germaine Katanga verdict to demonstrate her point.
In March 2014, the ICC convicted the Congolese warlord of murder, attacking a civilian population, destruction of property and pillaging [IJT-160]. Since he was proved to have amassed arms and ammunition and distributed them to militia, Katanga was found liable for the crimes that consequently occurred.
The judges further reasoned that Katanga was liable because the intensity of the attack he ordered forced the population to flee, making civilians susceptible to murder and pillaging. “However,” Inder emphasized, “the chamber did not seem to consider that the attempt by the population to flee the gunfire may also make it vulnerable to rape, capture and sexual enslavement.”
In her eyes, the verdict is emblematic of the larger problem that such sex crimes are often seen as a by-product rather than an instrument of war. “The use of sexualized violence is a tool for asserting ethnic dominance and political supremacy that is too often still interpreted as incidental to these goals,” said Inder.
Bensouda did not appeal the Katanga verdict, a decision highly criticized.
“Crimes per se”
The OTP’s June 2014 ‘Policy Paper on Sexual and Gender-Based Crimes’ reaffirms the ICC’s purported commitment to ending impunity for perpetrators and outlines strategies for successful prosecution.
One recommended practice is “cumulative charging”. That means treating SGBC “explicitly as crimes per se,” explains the paper, “in addition to charging such acts as forms of other violence”, like rape as a means of torture. The OTP argues that this approach reflects the “multifaceted character” and scope of SGBC.
Acknowledging how hard it is to prove commanders ordered SGBC under some common plan, the paper discusses the OTP’s aim to demonstrate liability by submitting “evidence such as patterns of prior or subsequent conduct” that can “prove an awareness on the part of the accused that such crimes would occur in the ordinary course of events” during an armed conflict. In the case against Congolese warlord Bosco Ntaganda, due to start this June, the prosecution is offering a smorgasbord of potential modes of liability, much to his defence’s chagrin.
It is difficult to predict response to this strategy, Askin tells IJT. “Judges with experience in adjudicating gender crimes will be more likely to accept this,” she notes. “Some continuing education courses for the judges on jurisprudence on international law and gender crimes would be very useful.”
Still, Askin lauds the ICC’s efforts. “Having the OTP interpret international law in a way that is favourable to prosecuting gender crimes is critical, regardless,” she says.
The June 2014 confirmation of all charges against Ntaganda marks a major success for the OTP. The pre-trial chamber also unanimously confirmed all SGBC charges: rape against civilians and child soldiers, sexual enslavement of civilians and child soldiers, persecution including acts of rape and sexual slavery.
Last year, SGBC charges were confirmed against former Ivorian president Laurent Gbagbo and politician Charles Blé Goudé. The OTP, however, withdrew charges against Kenyan President Uhuru Kenyatta [IJT-172], who was accused of rape and persecution by means of rape.
But indictments and convictions are not the only measures of success, says Olara, pointing to “domestication of SGBC by national jurisdictions” as another fruit of the OTP’s work.
Fabricio Guariglia, director of the ICC’s prosecutions division, believes trials are working to refute national narratives that reject or minimize the scope of SGBC. “International criminal justice systems have been instrumental in moving forward,” he said at the same Hague panel discussion as Inder. Guariglia sees this as “allowing a world discussion on sexual violence that is today completely different than it was 40 years ago, even 20 years ago,” and, in so doing, “shattering the state of denial”.