Days ahead of a major international summit on the issue, the lead prosecutor the International Criminal Court (ICC) announced that the judicial body will be taking a stronger look at rape and other forms of sexual violence as a crime against humanity in conflicts, bolstering hopes that justice will be granted to some of the many victims around the world.
[It] is only relatively recently that rape is even considered a war crime or crime against humanity”
ICC Prosecutor Fatou Bensouda has been on the job for the last two years, only the second to fill the role in the decade that the Court has been in existence. Since then, she’s taken over cases in Libya, Sudan, Côte d’Ivoire, and overseen the launch of an investigation into crimes committed in Mali. Her office is conducting preliminary investigations in Afghanistan, Nigeria, and Colombia. In all of these situations, the prosecutor has the authority to order the arrest of individuals accused of committing the most heinous of crimes — be they stateless rebels or in the highest levels of government — theoretically holding all accountable for their actions and the actions of soldiers under their control.
Last Thursday, Bensouda’s office issued a new policy paper that advocates hope will make the Court more amenable to taking on some of the world’s worst criminals in a crime that affects millions in combat zones around the world: rape and sexual assault. The Rome Statute, the founding document of the ICC, criminalizes “crimes against humanity” in its text. Under Article 7, the Court has the jurisdiction to prosecute such crimes against humanity as “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity” when “when committed as part of a widespread or systematic attack directed against any civilian population.”
In the new paper, the prosecutor’s office declared that it “recognises that sexual and gender-based crimes are amongst the gravest under the Statute” and will “seek to enhance the integration of a gender perspective and analysis at all stages of its work.” In 43 pages, it lays out the foundation for Bensouda and her staff’s work on the issue, ranging from the legal framework it will operate under to ensuring the safety of witnesses to the external communications work necessary to raise the issue among the public.
“The Policy Paper provides a foundation which we can and must all build on to ensure that we deal effectively with the scourge of sexual and gender-based crimes,” said the Prosecutor in a statement. “We will spare no effort to bring accountability for these crimes and in so doing, contribute to deterring the commission of such heinous crimes in the future. As a matter of policy, the Office will systematically include relevant charges in its cases on the basis of evidence of criminality. The message to perpetrators and would-be perpetrators must be clear: sexual violence and gender-based crimes in conflict will neither be tolerated nor ignored at the ICC.”
Advocates who spoke with ThinkProgress are pleased with the final version of the Court’s new guidance. “I think it provides the Office of the Prosecutor with a new approach to implementing its mandate and it clearly centralizes applying a gender analysis to all aspects of its work as a key strategy in tackling more effectively the prosecution of sexual and gender-based crimes,” Brigid Inder, executive director of Women’s Initiatives for Gender Justice, said in an email to ThinkProgress, noting that the policy came after 18 months of work. “This was the first policy the Prosecutor prioritized when she took office, so this is an issue close to her heart. “The policy paper is an important declaration to governments and other perpetrators that there is an international body willing and ready to hold them accountable for crimes based on gender in war,” Lauren Wolfe, director of the Women Under Siege project, agreed in an email. “We’ve come a long way for such a declaration to be created — it is only relatively recently that rape is even considered a war crime or crime against humanity, so as with that and all things to do with justice for crimes against women, we are overdue for affirmation that these crimes are taken seriously and will be prosecuted.”
[If a rapist] gets away with his crimes, it is because you have allowed it. You set the bar.
But Wolfe also pointed to “a problem with the ICC/Rome Statute regardless of all the declarations in the world: There is a blind spot when it comes to convictions for sexualized violence.” In particular, Wolfe cited the recent decision of the ICC to not convict Germain Katanga, a warlord in the Democratic Republic of the Congo, for rape despite ample evidence against him. “In the final judgment, sexualized crimes were considered ‘opportunistic,’ or happenstance to the larger plan to flatten the village,” Wolfe explained. “Under the Rome Statute, the ICC cannot convict a militia leader for indirect perpetration of ‘inevitable’ or foreseeable crimes like rape that aren’t obviously planned.”
The ICC will have the chance soon to live up to its new policy. On Tuesday, the Court’s judges confirmed charges against accused war criminal Bosco Ntaganda for a litany of abuses in the DRC. At the time of his surrender, Ntaganda — nicknamed ‘the Terminator’ — had recently formed, then fled from, the M23 rebel group that laid siege to the eastern Congolese states of North and South Kivu. Among the several charges that Ntaganda faces include rape and sexual slavery.
Bensouda’s announcement also came just days ahead of a high-level summit in the United Kingdom devoted to ending rape in conflict. The summit — co-hosted by British Foreign Secretary William Hague and Angelina Jolie — kicked off on Tuesday with well over 1,000 participants from more than 100 countries, including Secretary of State John Kerry. “It is a myth that rape is an inevitable part of conflict. It is a weapon of war aimed at civilians … done to torture and humiliate people and often to very young children,” Jolie, who serves as a Special Envoy of the United Nations High Commissioner for Refugees, said at the summit’s opening. Hague, according to Reuters, hopes that the conference will yield “a protocol to push for international standards on recording and investigating sex crimes to bring more people to justice.”
This time last year, Jolie appeared before the United Nations Security Council to plead with the world body to take stronger action on sexual violence in war. “Rape as a weapon of war is an assault on security and a world in which these crimes happen is one in which there is not, and never will be, peace,” she told Council members at the time. “I understand there are many things that it is difficult for the Security Council to agree on, but sexual violence in conflict should not be one of them,” Jolie continued, adding that if a rape victim’s attacker “gets away with his crimes, it is because you have allowed it. You set the bar.”