International courts play an increasingly important role within the international order, in particular, the international criminal court (ICC) is set to become highly influential. It ‘is the first permanent, treaty based, international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community.’ However despite its potential to dramatically improve justice for victims of international crime there is very little public awareness of this body, and further, it is yet to deliver a judgment. This independent organisation has been criticised for its slowness, and as Kelly Askin reports, ‘for not always showing gender sensitivity or, arguably, even gender competence in a few instances.’ Not a very good start. However, this could all be about to change. The ICC is now faced with its most significant challenge to date; gender competence and speed must now be at the forefront of the consciousness of the ICC. The trial of Jean-Pierre Bemba began on 22November 2010 at The Hague and is the ICC’s first case dealing with rape as a war crime. The former Congolese rebel leader Bemba is facing five charges of war crimes and crimes against humanity although the former vice-president of DR Congo denies these charges of rape and murder in the Central African Republic (CAR). The Bemba trial provides the opportunity for the ICC to disprove the criticism and show that it takes sex crimes against women, men, and children seriously. Will the ICC rise to this challenge?
Reporting at the scene for the Independent, Peter Biles comments ‘[t]he chief prosecutor Luis Moreno-Ocampo outlined the case against Mr Bemba. From the outset of this trial, the prosecutors are trying to show that Mr Bemba’s “command responsibility” was paramount and that he used rape as a weapon of war.’ Askin comments that this trial is ‘groundbreaking’ for several reasons. This is the first case that has focused almost exclusively on sex crimes – ‘it is first and foremost a rape crimes trial: rape as a war crime and rape as a crime against humanity.’ Sex crimes were used to provoke fear and control the CAR population. The first witness wept ‘as he described a young girl being raped in front of her mother by rebel fighters’. The most senior figure to stand before the ICC argues that he did not have control over the perpetrators of the sex crimes and therefore does not hold responsibility.
This trial is also notable because it is the first war crimes tribunal in which the three-judge panel of Trial Chamber III will consist of women judges- an uncommon formation for a court which traditionally favours a panel of male judges as the typical norm despite 10 of the 18 ICC judges being women. The presiding judge, Sylvia Steiner will be accompanied by colleagues from Japan and Kenya, and ‘thus female judges from Latin America, Asia, and Africa will adjudicate this historic ICC trial focused on gender crimes.’ The prosecution will also be lead by a female senior trial attorney (Petra Kneuer) for the first time. This bold move, utilising an all-women Chamber, will allow the judges to draw upon their expertise in areas of sexual violence ensuring that their judgment is informed as provided for within the Rome Statute. The ICC may be drawing upon lessons learnt from the example of the International Criminal Tribunal of Rwanda here. The Akayesu judgment delivered by this tribunal shows that women judges really do make a difference. This was not only the first judgment in which an accused has been found guilty of genocide for crimes which expressly included sexualised violence’, it also advanced gender issues within the international sphere due to the intervention of Justice Pillay (as discussed by Cherie Booth QC). Justice Pillay, the only woman judge sat on the tribunal at that time exposed the need for fair representation of women judges – the only beneficiaries of this being the women victims in the case before the court.
On the other hand, it may be argued that an all-women bench may politicise the decision. In previous tribunal decision issues of bias arose. In the case of Prosecutor v Furundzija before the Yugoslav Tribunal, the defence applied to overturn the decision arguing that the presiding Judge Mumba should be disqualified for failing to disclose that she had served as a member of the UN’s Commission on the Status of Women and thus was not impartial. Although unsuccessful, claims of bias against women judges could potentially taint the use of women judges who have been chosen to preside due to their experiences and expertise regarding women and gender-related crimes. An all-women bench may ensure that gender sensitivity is achieved by the courts, and allows the women judges with expertise in areas of sexual violence to utilise their knowledge and experience; however this departure from the norm for international criminal tribunals may (wrongly) overshadow the central issues faced by this new international court detracting from whether the ICC is effectively dealing with international sex crimes.
Victims have been awaiting justice in this case for nearly ten years and all eyes are focused on the ICC. The victims of this case have exhausted all possible remedies in their domestic legal system; it is the responsibility of the ICC to provide some measure of justice to the individuals concerned in its role as a last resort court to condemn international crimes. Ad hoc international criminal tribunals dealing with rape as a war crime has received praise (although at times criticism) for its approach. Earlier international criminal tribunals such as the International Criminal Tribunal for Rwanda (ICTR) and the United Nation’s International Criminal Tribunals for the Former Yugoslavia (ICTY) have exposed and addressed sexual violence as a war crime and a crime against humanity.
The ICTR in 1996 defined rape for the first time in international law when Trial Chamber I considered the case of Mr Akayesu. Akayesu was found criminally responsible for crimes against humanity for the aiding and abetting sexual violence as part of a systematic attack on civilians. He was charged with genocide for aiding and abetting serious bodily and mental harm on Tutsi women for the purpose of destroying the Tutsi group. The Chamber moved away from issues of non-consent (to be proved by the prosecution) and individual evidence of invasion of bodily parts. Instead, the Trial Chamber defined rape as sexual invasion under coercive circumstances. Catharine Mackinnon suggests that ‘arguably, for the first time, rape was defined in law as what it is in life.’ This ‘real-life’ definition of rape ensured that mass rapes committed for the same purpose were recognised legally as genocide, offering justice to Tutsi women who have suffered harmed.
The ICTY delivered the Kunarac (Foca) judgment in which a war crimes tribunal convicted ‘Dragoljub Kunarac of sexually assaulting and torturing Muslim women at rape camps during the Bosnian war, sentencing him to 28 years in prison’ as reported in the Guardian. This case condemned and exposed the use of sexual assaults as a form of enslavement; although this case does not acknowledge rape as a genocide as in Akayesu and therefore may be seen as a retreat, this approach does acknowledge the collective element of the act in cases of rape as a war crime. However, subsequent case law has moved away from the Akayesu approach toward rape and its definition.
The ICTR in cases such as Semanza favoured a “recital” of domestic law (as termed by Mackinnon) focussing on non-consent, reverting back to a definition of rape which appears nonsensical when dealing with mass rapes as part of a political campaign. Despite this, it can clearly be seen that ad hoc tribunals such as the ICTR and ICTY were – to an extent – taking sex crimes seriously. Will the ICC follow in the footsteps of earlier ad hoc international criminal tribunals, or will it take two steps back, failing to improve justice for victims of war crimes? The ad hoc tribunals and their judgments provide the ICC with great scope to improve the international approach towards rape, once again closing the door that Akayesu ‘shut so decisively’ to prevent those responsible for mass rapes from escaping conviction for serious war crimes based on evidentiary rules on individual consent. Mackinnon argues that this is not what has happened. She writes that although the ICC’s codified definition of rape leans toward force and coercion in defining sexual assault crimes, the door has been left ajar by the ICC’s evidentiary code ‘through which rapists can walk away after rapes that show no signs of stopping.’ However as the ICC is yet to deliver a judgment, its approach to rape in practice cannot be ascertained yet. The ICC is an international court unlike the ad hoc tribunals and is not attached to the UN; it is therefore of the upmost significance that this court shows that is well-equipped and willing to deal with rape as a war crime, and soon. The Bemba trial is the perfect opportunity to prove that the ICC is taking sex crimes seriously.
UN representatives on sexual violence in conflict welcomed the trial saying it, “represents a milestone in the history of international criminal justice and this is against the backdrop of wartime sexual violence having been one of history’s greatest silences”. Whilst the long silence is over, we shall await the outcome. At present, there is no indication of when the judgment is likely to be forthcoming. If previous delays concerning the beginning of this trial are an indication of future developments, the waiting time for a judgment may be a prolonged affair. In spite of this, whether it takes years or month, it will be worth the wait to see whether the ICC will take sex crimes seriously, or face criticisms for its failure to affect the fight against impunity once more?
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