Overview by Rosalie Dieleman, Research Associate PILPG-NL
Ms Gloria Atiba-Davies, Head of the Gender and Children’s Unit, Office of the Prosecutor of the ICC
Dr Yassin Brunger, Lecturer, Queen’s University Belfast
Ms Dieneke de Vos, PhD Candidate, The European University Institute
Ms Kelly-Jo Bluen, Project Leader International Justice, Institute for Justice and Reconciliation (Chair)
The Bemba judgement can be regarded as a historical moment in the international prosecution of sexual and gender based crimes.
This was the first conviction by the ICC based on charges of sexual violence, as well as it was the first conviction by the ICC based on command responsibility as the mode of liability.
It was also the first case in which sexual violence against male victims was prosecuted as rape. The Chamber considered that rape is a gender-neutral offense, victims and perpetrators can both be male or female.
There is now an increased attention for the prosecution for sexual and gender based crimes, in which offenses such as forced marriages and forced pregnancies are included.
International criminal justice has a role to play in addressing issues of gender-based discrimination.
This side-event entitled “The Bemba Ruling and Beyond: Accountability for Sexual Violence at the ICC”, discussed various aspects of the case against Jean-Pierre Bemba Gombo, and placed it in the broader context of the investigation and prosecution of sexual and gender based crimes. Jean-Pierre Bemba Gombo, former Congolese Vice-President, was convicted for crimes committed by the MLC (movement for the liberation of Congo) in the Central African Republic in 2003 under his command. The Bemba judgement can be regarded, for various reasons, as a historical moment in the international prosecution of sexual and gender based crimes. Dieneke de Vos discussed the substantive legal side of the judgement, after which Gloria Antiba-Davies elaborated on the practical side of dealing with the victims and witnesses in the case, after which Yassin Brunger placed the case in the broader context of international criminal law.
After an introduction by the chair, Ms Bluen, Ms De Vos started the panel session by covering various aspects that made the Bemba case stand out. The most relevant aspects being the fact that this was the first conviction by the ICC based on charges of sexual violence, as well as it was the first conviction by the ICC based on command responsibility as the mode of liability. It was also the first case in which sexual violence against male victims was prosecuted as rape.
The Chamber considered that rape is a gender-neutral offense, victims and perpetrators can both be male or female. Another interesting consideration of the Chamber is the fact that they considered acts of rape as a course of conduct of the MLK, and not as isolated acts of sexual violence. Additionally, the Chamber assessed the personal nature of the offenses and the stigma that is attached to victims of sexual crimes. With regards to command responsibility under article 28 of the Rome Statute, various types of evidence were used to establish this responsibility, such as: the fact that Bemba issued operational orders, that he was in the position to dismiss personnel, the fact that he had regular communication with those in the field, and that he received NGO reports concerning the situation in CAR. It was concluded that Bemba was in charge of the offenders, knew of what they were doing and did too little to prevent it, and had in fact created a climate of acquiescence. Other factors such as failure to provide adequate payment and failure to provide adequate training, can also be relevant for the establishment of command responsibility. There is now an increased attention for the prosecution for sexual and gender based crimes, in which offenses such as forced marriages and forced pregnancies are included.
Gloria Davis proceeded to talk about the role of the Gender and Children’s Unit in the Bemba case. She explained – in the presence of Jean-Jacques Badibanga, who was a trial lawyer for the prosecution in the Bemba case – that the prosecution strategy was to focus on the sexual and gender-based crimes. This required the Gender and Children’s Unit to be involved from the very beginning of the investigation. Davis organized a pre-deployment meeting before the investigators would go out in the field, to brief all of the staff that was to be engaged in the investigation on how to approach matters of sexual violence in the particular cultural context. Investigators were made aware of how the population they would be dealing with would interact with them, how they would speak about such matters and what language they would use when talking about sexual violence, and how to sensitively interact with victims taking their culture into consideration. Furthermore, the mental health of both the witnesses and investigators is a very important issue in such investigations, and therefore attention was paid to their psychological and sociological needs. With regards to victims, medical assistance was often required as well. In addition, once the witnesses were in the Netherlands for the proceedings, it was important in order to reduce their anxiety, that they would deal with the same people who had spoken to them during the investigation phase.
Yassin Brunger talked about the Bemba case from a different perspective, discussing how criminal justice addresses gender-based and sexual violence. She argued that, although the Bemba judgement is a step forward in addressing these crimes, we must counteract the narrative of sexual violence as a weapon of war. Rape and other types of sexual violence are not trapped within the confines of war. Brunger argues that the categorization as a war crime is not victim-centered enough, and does not do full justice to the victims that came to testify. This because gender-based violence relates to issues of discrimination, women and girls have been disproportionately affected and are often subject to patriarchy of the state, by laws that often do not recognize rape as such. She argues therefore that international criminal justice, aside from human rights law, has a role to play in addressing issues of gender-based discrimination. This would require a gender-based, or even gender-centered approach not just by the OTP, but as a court-wide approach.
Jean-Jacques Badibanga, trial lawyer for the Prosecution of the Bemba case, was also present at this event, and made some additional comments. Finding persons who are willing to share their story with the investigation team is very hard, even more so when it comes to male victims. In this case, two male victims of sexual violence were willing to testify, but this usually requires a lot of efforts by the investigation team. There are certain circumstances, for instance in the case of detention, in which investigators can suspect cases of sexual violence and should pay more attention and ask more follow-up questions. In addition, attention needs to be paid to the needs of the victim when it concerns who they want to speak to. It cannot be assumed that female victims want to talk to female investigators and vice versa. In the Bemba case for instance, one of the male victims refused to talk with male investigators, where the other male victim would only speak with male investigators. It is therefore of crucial importance that the investigation approach towards victims of sexual violence is never homogenized.