During the International Criminal Court’s first decade, Prosecutor Luis Moreno Ocampo was strongly criticised for his failure to use powers available under the Rome Statute to investigate and charge crimes involving sexual and gender violence. The ICC’s first case, concerning DRC warlord Thomas Lubanga Dyilo, was emblematic of this problem. Prosecutor Ocampo came under fire from human rights groups for failing to include any sexual crimes on the arrest warrant, when there was evidence that Lubanga’s UPC-FPLC militia had committed sexual crimes against civilians in the Ituri region of the DRC and against female child soldiers in the group.
The absence of these charges reverberated throughout the Lubanga trial; when the majority of judges handed down their verdict in 2012 they declined to find Lubanga culpable for the acts of sexual violence against child soldiers highlighted by the prosecution at trial, because Prosecutor Ocampo had not included these allegations in the initial charging document. In a dissenting opinion, Judge Elizabeth Odio Benito argued that sexual violence was ‘encoded in the charges’ of recruiting and using child soldiers, and stated that by excluding sexual violence from the definition of those charges, the majority was ‘making this critical aspect of the crime invisible.’
Fast-forward to 2014 and we see a marked improvement in the ICC’s efforts to address sexual violence. One clear sign of this shift comes with the current confirmation of charges hearing in The Hague against Bosco Ntaganda. In 2006, Prosecutor Ocampo sought an arrest warrant against Ntaganda, also a commander of the UPC-FPLC. Unlike Lubanga, who was taken into ICC custody in 2006, Ntaganda remained a fugitive until March 2013 when in a dramatic move, he turned himself over to the ICC via the US Embassy in Rwanda.
Prosecutor Ocampo’s 2006 application for an arrest warrant against Ntaganda did not include sexual violence charges but Prosecutor Bensouda’s 2014 charging document represents a major change of course, not least because it makes sexual violence highly visible: the charging document, which is currently before the Court, refers to the UPC-FPLC’s sexual violence crimes against civilians and against the child recruits.
At the recent hearing, Prosecutor Bensouda further emphasized the centrality of rape and sexual enslavement in the UPC-FPLC’s campaign of ethnic persecution in Ituri. ‘Both property and women were considered spoils of war,’ the Prosecutor explained. She highlighted the evidence a woman who was raped and sexually enslaved by the UPC-FPLC, a man who found the bodies of 49 people murdered by the group including women whose bellies had been sliced open, and a child solder who stated that ‘the rapes continued throughout our training – sometimes the soldiers who raped us came in groups of three of four.’ Should the Pre-Trial Chamber confirm the charges, it will be the first time an individual is tried in the ICC for sexual violence crimes against child soldiers.
The focus on sexual violence in Ntaganda and not Lubanga can be explained by several factors: the Office of the Prosecutor has had eight extra years to investigate the case; the Office has been responsive to the demands of human rights groups, including the Women’s Initiatives for Gender Justice, to pay greater attention to impunity for sexual violence after the Lubanga verdict; the influence of Judge Benito’s dissenting Lubanga opinion; and, perhaps most importantly, the change in leadership in the Office.
Since being elected as Prosecutor in 2012, Bensouda has made clear her intention to pursue sexual and gender violence as a priority of her seven-year term. Her promises are being realized through her persistence in adding charges to the Ntangada charges, and through other measures. The release in February 2014 of the Office of the Prosecutor’s long awaited draft Policy Paper on Sexual and Gender Based Crimes is one such initiative and suggests that this increasing focus on sexual and gender violence is set to continue.
The draft prosecution policy names the investigation and prosecution of sexual and gender based crimes as one of the Office’s key goals for its 2013-2015 strategic plan. It highlights the need to pay close attention to these crimes from the preliminary examination onwards, and train staff in interacting sensitively with victims and witnesses. It also recognizes while the ICC Statute explicitly enumerates sexual and gender based crimes as war crimes and crimes against humanity, other international crimes including the recruitment of child soldiers ‘may also contain gendered and sexual elements’ – a major development given the limited charges against Lubanga.
With these recent developments in the Ntaganda case and the release of the Office of the Prosecutor’s gender policy, there is reason to hope that the ICC has learnt important lessons from its initial failures and is establishing a path to achieve its gender justice aims. Key ‘insiders’ including feminist-inspired judges, Prosecutor Fatou Bensouda and ‘outsiders’ including Brigid Inder, the Women’s Initiatives for Gender Justice Director and Bensouda’s Gender Advisor, are at the forefront of forging this path. It is hoped that these actors are successful in ensuring that gender justice concerns are a hallmark of the next phase ICC’s efforts to address impunity in all its forms.
Louise Chappell and Rosemary Grey (Faculty of Arts and Social Sciences, UNSW)