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The ICC Takes on Gender Crimes

The International Criminal Court (ICC) has been operational since 2002, yet victims of war crimes, crimes against humanity, and genocide are still awaiting the court’s first judgment. The court as a whole has been hammered most recently for its slowness, for missteps in its first trial—the Lubanga case, and for not always showing gender sensitivity or, arguably, even gender competence in a few instances. 

As the trial of former Congolese Vice President Jean-Pierre Bemba opens in The Hague for crimes committed in the Central African Republic, the ICC has a chance to demonstrate its ability to hold a high profile and speedy trial meeting minimum fair trial standards and to prove that it takes sex crimes very seriously. 

The Bemba trial is groundbreaking in many respects, including for its treatment of sex crimes and for the presence of women in decision-making positions within the court: 

  • It is the first case before the ICC to be focused almost exclusively on sex crimes. While murder and pillage are also charged, it is first and foremost a rape crimes trial: rape as a war crime and rape as a crime against humanity.
  • It is the sole charge (at least issued publicly) by the court against any individual for the horrific atrocities committed in the Central African Republic related to the 2002-2003 coup.
  • The charges are against the highest level accused to go on trial before the ICC. Bemba was a vice president in the DRC and the leader of the Movement for Liberation of Congo (MLC) rebel group.
  • There has been no other international war crimes trial before any war crimes tribunal where three female judges have sat on the bench. In contrast, it would be wholly unremarkable, indeed downright common, if three male judges were sitting on the case, as that is simply the norm. The presiding judge, Sylvia Steiner from Brazil, has expertise and training in women’s rights. Her colleagues are Judge Kuniko Ozaki from Japan and Judge Joyce Aluoch from Kenya. Thus, female judges from Latin America, Asia, and Africa will adjudicate this historic ICC trial focused on gender crimes.
  • It is the first case before the ICC where a female trial attorney (Petra Kneuer) is taking the lead as the senior trial attorney prosecuting the case. Deputy Prosecutor Fatou Bensouda will also lead the prosecution in this case (Bensouda also is a lead counsel for the prosecutor in the other two trials ongoing before the court.)
  • This is the court’s first command responsibility case. Bemba is accused of incurring command responsibility for crimes committed by subordinates over whom he had effective authority and control. He is alleged to have failed in his duty to prevent, halt, or punish the crimes committed by subordinates.
  • Sex crimes against women, men, and children alike were reportedly used as a “tool” to terrorize, demoralize, and dominate the civilian population in the CAR. Many rapes were committed by multiple perpetrators and/or in front of family members. Several survivors of rape and gang rape reportedly contracted HIV/AIDS; many women and girls became pregnant as a result of the sexual violence. 

Many eyes will be on the ICC during the Bemba trial. The case has the potential to rival and in some aspects perhaps even exceed the legal significance of the landmark Kunarac (Foca) judgment before the International Criminal Tribunal for the former Yugoslavia (ICTY). Kunarac was the ICTY’s first trial of multiple accused to focus exclusively on gender-related crimes, resulting in the tribunal’s first convictions for rape, torture, and enslavement as crimes against humanity for the brutal treatment of women and girls in the town of Foca. While the Katanga and Ngudjolo case, currently before the ICC’s Trial Chamber II, does include significant rape and sexual slavery charges, the gender crimes in that case are incorporated as part of an array of crimes—including conscripting child soldiers, murders and attacks against the civilian population, and property crimes—they are not front and center as with Bemba. (It should also be mentioned that the Katanga and Ngudjolo case has two female judges sitting on that trial.)

In recent years, a number of UN Security Council Resolutions have condemned conflict-related sexual violence and increasingly urged an end to impunity for these crimes; they have also demanded women’s inclusion in decision-making positions in peace and accountability efforts. (See e.g., SC Res 1325 of 2000, 1674 of 2006, 1820 of 2008, 1888 of 2009, 1889 of 2009 and 1894 of 2009.) Sexual violence as a tool of warfare is now widely recognized as one of the most heinous—and despicable—crimes committable. Society is increasingly acknowledging that the shame and stigma wrongly placed on the survivors belongs instead on the weak, cowardly, and dishonorable perpetrators of sex crimes. 

The sex crimes in CAR were first brought to the attention of the ICC by an investigative report issued by the International Federation for Human Rights (FIDH) in February 2003. After conducting its own lengthy proceedings, the ICC finally opened a full investigation in May 2007, and a warrant of arrest was issued for Bemba a year later, when he was in Belgium. 

The victims in this case have been waiting for justice for nearly ten years. The International Criminal Court has the opportunity and the responsibility to provide at least some measure of justice for the carnage allegedly committed by this Congolese warlord in the Central African Republic. Domestic courts must also be supported to hold fair and impartial trials against lower level suspects. Hopefully, the ICC will provide a model for both international and national justice processes redressing atrocity crimes.