Prosecution of sexual violence by the ICC: Hope for a better future?

20 years ago, the International Criminal Court (ICC) was established. So far, however, there was no final conviction for sexual violence crimes at the court. Our guest author asks why.

A guest blog by Mariasole Forlani*

The ICC has often been criticized for its weak track record in providing justice to victims of sexual violence in conflict. In July, the world celebrated the 20th anniversary of the Rome Statute, the founding treaty of the ICC. But when it comes to the prosecution of sexual violence, little has been achieved at the ICC.

In the court’s first years after it was set up in 2002, the prosecution of rape and other forms of sexual violence appeared not to be a high priority. One of the explanations that have been put forward is that then-prosecutor Luis Moreno Ocampo had to build cases quickly to get the new institution going and therefore focused on crimes and cases that were more obvious and easier to investigate.

In the court’s very first case, brought against the Congolese militia leader Thomas Lubanga, Moreno Ocampo decided to focus on one specific crime only – the use of child soldiers. Even though there was evidence that girl child soldiers were subjected to sexual slavery and rape, no charges had been made in relation to these crimes.

Thus, a narrow focus of the investigation and prosecution strategy led to the exclusion of sexual violence crimes from the Lubanga case. When the judges sentenced Lubanga to 12 years in prison in 2012, they noted that they “strongly deprecate the attitude of the former Prosecutor in relation to the issue of sexual violence.”

ICC case against Germain Katanga: lack of evidence for sexual violence

The case against another Congolese militia leader, Germain Katanga, was the first time charges of sexual violence were part of an indictment. In the judgment, the court confirmed that there was evidence of rape and sexual slavery in the aftermath of the attack on the village of Bogoro which Katanga was leading.

But Katanga could not be connected to these crimes. He was convicted of murder and other acts which constitute crimes against humanity and war crimes, but acquitted of rape and sexual slavery for a lack of evidence.

Is the situation different today?

After Fatou Bensouda, the current prosecutor, took office in 2012, the approach of the Office of the Prosecutor (OTP) has changed. Bensouda published a policy paper on Sexual and Gender – Based Crimes in June 2014. She underlines that: “The message to perpetrators […] must be clear: sexual violence and gender-based crimes in conflict will neither be tolerated nor ignored at the ICC.”

ICC prosecutor: strong advocate for prosecution of sexual violence

Bensouda has become a strong advocate for the prosecution of sexual and gender-based violence and made its investigation a priority.

The reality is, however, that there is still no final conviction for sexual violence crimes at the ICC.

In 2016, the judges convicted the former Congolese vice president Jean-Pierre Bemba of crimes against humanity and war crimes, and sentenced him to 18 years’ imprisonment. In June 2018, however, the Appeal Chamber acquitted Bemba of all charges. The decision was seen as a huge disappointment and a setback for the prosecution of sexual violence crimes.

Dialogue with local population

What can be done to strengthen the ICC’s ability to prosecute sexual violence? First, the OTP should receive the necessary resources in order to be able to conduct its investigations swiftly. The more time elapses, the more difficult it becomes to collect evidence.

Second, a stronger presence in the field would facilitate the dialogue with the local population and encourage victims to speak out and break the silence. In many societies, the strong stigma of rape prevents women and men to come forward and talk about what happened.

If these steps are taken, chances are good that there will be more reason to celebrate the ICC’s birthday in 20 years’ time.

*Mariasole Forlani studied Public International Law, specializing in Peacebuilding and Transitional Justice. She analysed the impact of international criminal tribunals on public opinion, in order to verify if international courts contributed or not to Transitional Justice’s processes.