The End Of Conflict-Related Sexual Violence Impunity In The International Criminal Court?

Sexual violence during conflicts has never received much attention. At the international level, very few prosecutions have been presented and even fewer cases have been convicted. In domestic jurisdictions, the rate of convictions regarding conflict-related sexual violence is extremely low and as the 2019 report on Conflict Related Sexual Violence of the United Nations Secretary-General states, the elusiveness of justice is due to the barriers that justice systems impose on victims and the restricted capacities that states have to investigate these types of offences. Also, the stigma, fear, and rejection that victims of sexual crimes often face, reduce the likelihood of accountability.

On July 8th, the Trial Chamber VI of the International Criminal Court (ICC) declared Bosco Ntaganda guilty of 18 counts, including rape and sexual slavery as war crimes and crimes against humanity. The decision on the Bosco case is particularly important as he is the first person in the history of the ICC to be convicted for sexual slavery and also because it installs an unmistakable prosecution precedent in cases of conflict-related sexual violence, which was scarce in the ICC.

The presence of conflict-related sexual violence convictions is not only scant within the ICC, but it was also limited in the rulings of the international criminal tribunals for the former Yugoslavia and Rwanda, and was almost non-existent in domestic courts. The case against Jean-Paul Akayesu, ruled by the International Criminal Tribunal for Rwanda (ICTR), was the first case where sexual violence was fully prosecuted under an international tribunal and signalled a major step forward in justice as a high ranking official was convicted for the actions of his subordinates. The ICTR later convicted the first woman in 2011, for acts of rape as a crime against humanity. In this case, the court found Pauline Nyiramasuhuko, a former Rwandan minister, guilty for acts of rape as a crime against humanity on ethnic grounds as she aided and ordered the rapes of Tutsi women.

In an unprecedented case, the International Criminal Tribunal for the former Yugoslavia (ICTY) indicted and convicted Dragoljub Kunarac,  Radomir Kovac and Zoran Vukovic for counts related to sexual violence in contexts of conflict. The three men were found guilty of enslavement, rape and torture of dozens of Bosnian Muslim women as part of the systematic attack on the non-Serb civilians during the conflict in Bosnia, and although in this case they were not commanders or had any position of authority they did commit the offences in nexus with the armed conflict. One of the most important elements of this judgment was related to the definition of rape, where the court considered that the force or threat of force, as well as the victim’s resistance, are not essential to the qualification of the conduct. Instead, the tribunal considered that the essential component in the definition of rape is the victim’s lack of consent and the violence, struggle and manifest of refusal are not in any case requirements of the criminal act.

The International Criminal Court, in the first verdict on the Bemba case, convicted former military commander of the Central African Republic Jean-Pierre Bemba for crimes of rape and murder as war crimes and crimes against humanity perpetrated by his troops. Here, the Trial Chamber considered that Commander Bemba had effective control over the forces of the Movement for the Liberation of the Congo (MLC) and as such, was criminally responsible under the elements of command responsibility of Article 28 of the Rome Statute. In spite of the above, on the review of the judgment, the Appeals Chamber considered a more rigid approach on the command responsibility and instead applied concepts related to direct and indirect co-perpetration, which finally led to the acquittal of the defendant in the accusation of sexual crimes.

The ICC had been maintaining its record of zero final convictions in relation to sexual violence since the appearance of the Rome Statute. However, with the above-mentioned decision of July 8th 2019, the conviction of Bosco Ntaganda for the crimes of rape and sexual slavery might symbolize a victory for conflict-related sexual victims and the end of impunity for sexual and gender-based crimes.