International Order & Conflict
Commentary

Justice for Victims of Sexual Violence at the ICC?

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This Friday, the International Criminal Court (ICC) is expected to reach a decision that could be a major milestone. If the defendant is found guilty of rape and sexual slavery it would be the first conviction on sexual violence charges at the ICC, which would strengthen international norms and create new legal precedents for sexual violence offences as international crimes.

The defendant, Germain Katanga, is accused of war crimes and crimes against humanity for deliberately targeting civilians for killing, using child soldiers, raping women and abducting women to a camp where they were forced into sexual slavery. The charges are specific to his alleged role as a rebel commander in a 2003 attack on the village of Bogoro in the Democratic Republic of Congo (DRC). Katanga was the alleged commander of the Front for Patriotic Resistance in Ituri (FRPI) from 2003 until 2004, when he left the rebel group to be integrated into the armed forces of the DRC.

International criminal courts such as the ad hoc courts set up after the Rwandan Genocide (the ICTR) and the Yugoslav Wars (the ICTY) have convicted defendants of sexual violence crimes before, but the ICC’s conviction of Katanga would be significant for two reasons.

First, the ICC is the world’s only permanent international criminal court. The Rome Statute that established the ICC has been signed by 122 states. Until the 1990s, sexual violence was often regarded under international law simply as an inherent part of conflict or treated as the “spoils of war.” It was only in 1993 that the ICTY Statute defined rape for the first time as a war crime and in 1994 that the ICTR Statute listed it as a crime against humanity. A conviction at the ICC would build on these precedents to add legitimacy to the idea that sexual violence offences are international crimes, and to establish standards for sexual violence crimes under international law.

Second, before the creation of the Rome Statute, international criminal courts often recognized sexual violence offences as methods of committing other crimes such as genocide, torture and slavery. The Rome Statute defined sexual violence crimes including rape and sexual slavery independently as war crimes (if committed in the context of an international armed conflict) and crimes against humanity (if committed as part of a widespread or systematic attack against civilians). This recognition contributes toward an international law norm that acts of sexual violence are not simply a means of committing other international crimes, but may be international crimes in and of themselves.

Such recognition is particularly important in the case of sexual slavery, an offense that is seen all too often in conflict but has received relatively little attention. The ICC was the first international criminal court to recognize sexual slavery as both a war crime and a crime against humanity in its statute. Previously, international legal recognition of sexual slavery had been limited to a decision at the ICTY which allowed the definition of slavery as a crime against humanity to include sexual slavery. If Katanga is convicted of all charges, it would be the first conviction for sexual slavery as a war crime under international law.

Because much of the evidence concerning sexual violence crimes in particular was delivered in private to protect the witnesses, it is difficult to tell how strong the case against Katanga is. If found guilty, Katanga will likely serve out his prison sentence in one of the handful of countries (including Austria, Belgium, Denmark, Finland, the United Kingdom and Serbia) that have indicated their willingness to accept those convicted by the ICC.

It is also possible that on Friday the ICC will acquit Katanga of all charges. The case revolves around the same set of events as a previous ICC case against Mathieu Ngudjolo Chui, who was acquitted by the ICC. Katanga and Chui were originally charged jointly on the allegation that they had formed a plan together to carry out the attack on Bogoro, before the ICC ruled to have them tried separately.

The ICC ultimately acquitted Chui not on the basis that the crimes themselves hadn’t occurred, but because the prosecution had not proven beyond reasonable doubt that Chui had been the commander of the FNI rebel group during the relevant period. Katanga’s defense team has used the same line of argument, claiming that Katanga was not an FRPI commander during the attack on Bogoro. This issue of command responsibility will likely be an ongoing challenge for the ICC. Many armed groups in the DRC and elsewhere do not operate with a clearly defined and provable chain of command. Moreover, the ICC has limited capacity to conduct timely on-the-ground investigations, particularly given the difficulty of collecting evidence in an environment of ongoing conflict like the DRC.

In one sense, the ICC’s decision to acquit Chui bolstered the legitimacy of the Court by providing proof that its judges would hold the Office of the Prosecutor to a high standard. But for many who wanted justice for victims of the violence in DRC and a deterrent against future offenders, Chui’s acquittal came as a major blow. If Katanga is also acquitted, the next opportunity for an ICC conviction on sexual violence charges will be the trial of Bosco Ntaganda, another alleged leader of a DRC rebel group, who has been charged with rape and sexual slavery of civilians and of child soldiers among other offences.

Even if Katanga is not convicted, the ICC’s inclusion of rape and sexual slavery independently as war crimes and crimes against humanity is a step forward for the treatment of sexual violence under international law. A conviction in the Katanga trial would be a major achievement for the ICC, and might deter armed actors who continue to inflict this kind of violence in the DRC.

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Photo by UN Photo/Martine Perret

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