This is the second part of a two-part interview with International Criminal Court (ICC) Deputy Prosecutor Fatou Bensouda. The Deputy Prosecutor answers questions about rape as a weapon of war and how the victims are having an impact on the trial of Jean-Pierre Bemba.
Wakabi Wairagala: From the accounts heard so far, and bearing in mind that this is the first case at the ICC where a charge relating to the use of rape as a weapon of war is preeminent, in what ways did the MLC use rape as a tool of war in CAR? How widespread was the problem, and from what witnesses are saying, what was the main motivation for the MLC to carry out these rapes?
Fatou Bensouda: We are alleging that the MLC used rape as a military tactic designed to dominate, designed to humiliate the civilian population, thereby have the effect of shattering the resistance or support for the rebels and also to destabilize the enemy. We are also alleging that rape was committed in public and in people’s homes at any time and against any one. We have said, and we are bringing witnesses who are showing, that rape was committed in public and it was also committed in people’s homes in private. The use of rape as a weapon of war, I think, was particularly telling. The targeting of men; men in positions of authority, community leaders and protectors, as well as gang or multiple rapes that were committed against women and children. What we have seen as an effect was the destruction of individuals, the destruction of communities and the destruction of families.
We are also alleging that these rapes taking place were geographically widespread. The prosecution’s case is saying that rape was synonymous with the progression of control of an area by the MLC troops in the CAR, from the capital city Bangui, along the two main access roads that spread towards the northern parts of the country. In general, we are saying that the MLC raped because they could rape. The testimonies of the witnesses that we have so far heard as well as the gender expert on the use of rape as a weapon of war have identified three main motives for these rapes. First, they have identified rape as a reward and they have identified it as a form of sexual release. Secondly, rape has been identified as [being used] to punish the population for their perceived support for the rebels. And thirdly, rape was used to destabilize the enemy – the rebels in this case. This is why coming back to your question, we are saying that definitely in the case of the alleged crimes by the MLC in the CAR, particularly the use of rape was used as a weapon of war.
WW: Are you saying that the leadership of the MLC was aware and maybe had this as a strategy to use rape?
FB: This is what we are alleging. As I said, already this has been identified not only by the expert witness but also by others saying that it was used as a reward. It was used to punish, it was also used to destabilise. It was really a strategy.
WW: As an official strategy of the group rather than acts of individuals in the group?
FB: Yes, rather than acts of individuals in the group. The way the rapes were committed, you see, you have to recall that this is one of the few allegations, few cases in which we are saying that the allegations of rape far outnumber the killings that took place. So this was very widespread in the context of these crimes that took place in the charging period.
WW: The use of intermediaries was very much in focus in the Lubanga trial. In what ways did the OTP use intermediaries in the case against Mr. Bemba, and what is the likelihood that the defense could raise the kind of criticisms that were made about the role of some intermediaries in the Lubanga trial?
FB: In contrast to the Lubanga case, the OTP did not use such intermediaries in the Bemba case. Therefore, we do not envisage the scenario in Lubanga to occur in the Bemba case. We did not use the intermediaries at all.
WW: Who played the role of intermediaries?
FB: It was our own investigators. We were able to contact witnesses directly.
WW: Some organizations?
FB: At the beginning, I can maybe tell you that perhaps we used organizations to contact [potential witnesses]. But we were able to make direct contact with the witnesses ourselves. So this is not something we are looking forward to seeing at all.
WW: You have accused Mr. Bemba for war crimes of rape and murder. However, some witnesses heard so far have stated that there were child soldiers in the MLC. Why was Mr. Bemba not charged over the use of child soldiers?
FB: In framing the charges in this case, the OTP is driven by the evidence as well as the patterns that emerge from the evidence. The evidence that we collect and have analyzed has shown that the large scale, widespread and organized use of rape, murder and pillaging as part of the MLC’s involvement in the armed conflict and the attack against the civilian population. Unlike Lubanga for example, the evidence in Bemba’s case that we collected did not show a similar situation in terms of child soldiers. Nevertheless, where the OTP has further evidence of a particular crime, it is [possible to bring] further charges against the accused if we deem that it is appropriate. We can do so anytime. I am not saying we are going to do it but it is something that is within our mandate to do.
WW: You are able to bring new charges against somebody who is already charged… a different set of charges?
FB: Yes, absolutely. But as I said, this is not the position that the Office has taken in this case. We think that in the Bemba case a lot of focus should be and has been laid on the allegations of rape, of pillaging and of murder. It was not as in the scenario of the Lubanga case which had child soldiers.
WW: Up to 1,300 victims are participating in this trial? Does this present any challenges to parties to the trial? And is the prosecution satisfied with the role which victims have played in the Bemba trial?
FB: We believe we have been very vocal about this throughout, consistent that the victims bring a very unique and a necessary perspective to the court’s activities and they also contribute to the fair and efficient trials. As you know, in the ICC we do not have a jury. There is no jury system in international criminal justice and therefore, you can see that the victims are the only popular participants in the proceedings. I think this is very important. Under the [Rome] Statute also, the victims are actors of international justice. And victim participation is a statutory right. It is not a privilege that is bestowed on a case-by-case basis.
As a matter of policy, the OTP has always supported and will continue to support the participation of all victims who have lodged applications and have met the requirements of participation. Regarding the Bemba case, yes there are just over 1,300 victims participating in the trial, however, this has not presented insurmountable challenges for the Office. From our perspective, the timely transmission of victims’ applications for observations by the parties has contributed greatly to a more efficient trial. We have consistently stressed and continue to stress that the bureaucratic or resource related arguments such as the number of victims require practical solutions. They do not constitute an obstacle to participate per se.
I just want to underline that victims don’t and these victims that you mention – 1,300 victims are being represented by two lawyers from the CAR who present their views and concerns to the Chamber. The victims themselves, I mean those who are not prosecution witnesses, are not present in the court room during the proceedings. The legal representatives can examine the witnesses when they can show that the personal interests of victims are affected and the Chamber deems such intervention and questions as appropriate. Therefore, we as the OTP, we have been satisfied with the role that legal representatives have been playing. Their role of course is very distinct from the role that we play as prosecution, or even from the defense. Their role is the one that brings the voice of victims into the courtroom and this is significant.
WW: Why is it then that you have victims who are also prosecution witnesses yet the legal representatives are always presenting the interests of victims and their voices in the court? In this case you have some dual status…
FB: It is possible that it happens and as I said, the role that the prosecution is playing and the role that the victims’ representatives are playing are different. Ours is to ensure that through the witnesses, we present the evidence towards the guilt of the accused, or at least for the truth to assist the judges in arriving at a just determination. Whereas the victims representatives’ role is to ensure that they present how these victims have suffered from the crimes that have been prosecuted, how it has affected them, how the actions of the person who is or at least through his subordinates in this case, those actions affect the victims. The legal representatives are able to present those views and concerns. We as the OTP may go to a certain level but it is only the legal representatives who can bring in that personal voice of suffering.