Judicial responses to conflict-related sexual violence
International jurisdiction
The gradual criminalisation of conflic-related sexual violence
1. INTERNATIONAL CRIMINAL TRIBUNALS
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International Criminal Tribunal for the former Yugoslavia (ICTY) :
This court has played a major role in criminalising sexual violence committed in times of conflict. Its statute includes rape as a crime against humanity when committed during an armed conflict and directed against a civilian population [1].
The tribunal conducted the first trial to deal exclusively with sexual violence (ICTY, Furundzija, 1998), and was the first international tribunal to classify rape as a crime against humanity (ICTY, Kunarac et al., 2002, which concerned "rape camps" in Foca, Bosnia) [2]. Consequently, the ICTY has developed an extensive body of case law criminalising sexual violence. More than a third of those convicted by the ICTY have been found guilty of crimes involving sexual violence [3].
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International Criminal Tribunal for Rwanda (ICTR) :
The ICTR has also included rape in its statutes. In 2001, it became the first (and to date the only) international tribunal to consider acts of sexual violence as constitutive elements of the crime of genocide, in the judgment of Jean-Paul Akayesu [4]: The Chamber concluded that the rapes had been committed with the intention of destroying the Tutsi ethnic group. The court also defined the crime of rape, for which there exists no commonly accepted definition in international law [5]. This judgment sets a historic precedent for international criminal justice and the punishment of sexual violence linked to conflicts.
THE INTERNATIONAL CRIMINAL COURT
The International Criminal Court (ICC): The founding treaty of the ICC, the Rome Statute (in force since July 2002) expressly penalizes crimes of sexual violence. It proposes a definition of this crime, attached to war crimes and crimes against humanity. These abuses include rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilization or any "other form of sexual violence of comparable gravity"[6].
They can constitute:
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A war crime, when committed in the context of an armed conflict, and in connection with this conflict.
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A crime against humanity, when committed as part of a widespread or systematic attack, targeting a civilian population.
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A genocide, when committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.
[Last updated: June 2023]
Some key cases
In 2016, Congolese Jean-Pierre Bemba was found guilty by the ICC of crimes against humanity and war crimes, in particular for the rapes committed in the Central African Republic by the troops of the Movement for the Liberation of Congo (the MLC) of which he was in control [7]. Bemba was convicted in his capacity as military commander, and not as the direct perpetrator of the rapes. This was the ICC's first conviction for the use of sexual violence as a war crime and a crime against humanity. However, at his appeal trial in 2018, Bemba was acquitted, due to errors that affected the first instance decision and because the judges ultimately considered that he could not be held criminally responsible as a military commander for the crimes committed by MLC troops [8].
© Photo CPI
It was not until 2019 that the ICC convicted the Congolese Bosco Ntaganda of rape and sexual slavery, qualified as war crimes and crimes against humanity [9]. This decision was confirmed on appeal in 2021 [10] and is now final. Ntaganda was sentenced to 30 years' imprisonment, making him the first person to be definitively convicted by the ICC for acts of sexual violence.
© Photo CPI
Recently, in 2021, Ugandan warlord Dominic Ongwen was also convicted of numerous sexual crimes, including forced marriage, torture, rape, sexual slavery, enslavement, forced pregnancy and outrages upon personal dignity. He was sentenced to 25 years' imprisonment [11]. This conviction was upheld on appeal on 15 December 2022, making it the ICC's second definitive conviction for sexual and gender-based crimes.
© Photo CPI
3. HYBRID JURISDICTIONS
Mixed and hybrid tribunals are national jurisdictions that allow international crimes to be judged under the domestic law of the State concerned [12], but which also combine elements of international jurisdictions, in terms of their staff, their operation and the categories of crimes covered [13]. They are generally set up under the auspices of international organisations such as the UN. These courts are set up in countries that have experienced crises or conflicts, to judge those responsible for violations of international law when the country's own judicial system is unable to do so.
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The Special Court for Sierra Leone
The Special Court for Sierra Leone (SCSL) was set up under an agreement between the United Nations and the Sierra Leonean government to judge crimes committed during Sierra Leone's civil war from 1991 to 2002. It handed down judgements in June 2007 and February 2009 condemning sexual slavery as a war crime, rape as a crime against humanity and the practice of forced marriages committed by troops of the Armed Forces Revolutionary Council (AFRC) and the Revolutionary United Front (RUF).
Charles Taylor le 30 mai 2012.
(Photo United Photos. Reuters)
In April 2012, the SCSL handed down the first ever conviction against a head of state, former Liberian President Charles Taylor [14]. He was found guilty of aiding and abetting the rape and sexual enslavement of girls and women, crimes against humanity and war crimes, committed during the Sierra Leone conflict by members of the Armed Forces Revolutionary Council (AFRC) and the Revolutionary United Front (RUF). The jurisprudence of this court is one of the richest in the field of sexual violence.
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The Extraordinary Chambers in the Courts of Cambodia
These chambers were set up in 2003 with the help of the United Nations to judge crimes committed under the Khmer Rouge regime between 1975 and 1979. One of the cases (the second trial, "Case 002") deals in particular with sexual violence allegedly committed by former Khmer Rouge leaders Nuon Chea and Khieu Samphan.
A key case
A key case
In November 2018, the defendants were found guilty of genocide, war crimes and crimes against humanity, including forced marriages and rape committed in the context of these forced marriages [15]. This trial is the first to recognise these crimes, committed as part of the implementation of the national policy to regulate marriage [16]. Many couples were forced to marry and then "have sexual relations with their new spouse" [17].
Nuon Chea et Khieu Samphan le 18 juillet 2012 (Photos CECT)
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The Special Criminal Court of the Central African Republic
The Central African Republic has a specialised judicial body, the Special Criminal Court, created in 2015 to prosecute cases of "serious human rights violations and serious violations of international humanitarian law" committed in the country since 1 January 2003. Crimes of sexual violence committed since that date can therefore be prosecuted, and even feature prominently in the "Investigation, Prosecution and Investigation Strategy" [18].
REFERENCES
[1] United Nations,Updated statute of the International Criminal Tribunal for the former Yugoslavia, September 2009, Article 5.
[2] ICTY, Sex Crimes - The Key Cases
[3] ICTY, Sex crimes
[4] ICTR, Trial Chamber I, The Prosecutor v. Jean Paul Akayesu, Case No. ICTR-96-4-T, Judgment, September 2, 1998.
[5] ICTR, Press release, A FIRST IN HISTORY: AKAYESU RECOGNIZED GUILTY OF GENOCIDE BY THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA, September 3, 1998.
[6] Rome Statute, Article 7-1-g) for crimes against humanity, and Article 8-2-b-xxii) and Article 8-2-e-vi) for war crimes.
[7] Trial Chamber III, Situation in the Central African Republic, Case of The Prosecutor v. Jean-Pierre Bemba Gombo, Judgment rendered pursuant to Article 74 of the Statute, ICC-01/05-01/08-3343, 21 March 2016.
[8] ICC, Fact Sheet Situation in the Central African Republic, The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08 [Updated August 2021]. See also the Full Judgment on Appeal: Appeals Chamber,Judgment on the Appeal by Jean-Pierre Bemba Gombo Against the Judgment Rendered Pursuant to Article 74 of the Statute by Trial Chamber III, ICC-01/05-01/08-3343, 8 June 2018.
[9] Trial Chamber IV, Situation in the Democratic Republic of Congo, Case of the Prosecutor v. Bosco Ntaganda, Judgment, July 8, 2019.
[10] ICC, Press release “Ntaganda case: ICC Appeals Chamber confirms conviction and sentence”, March 30, 2021.
[11] ICC, Fact Sheet Situation in Uganda, The Prosecutor v. Dominic Ongwen, ICC-02/04-01/15 [Updated August 2021]
[12] Ministry of Foreign Affairs, Hybrid jurisdictions, [Last accessed 31 January 2022]
[13] Public life, Fact Sheet What is a special international tribunal?, August 27, 2019
[14] Human Rights Watch, Sierra Leone: Sentencing of former Liberian President Charles Taylor is a historic step, April 26, 2012.
[15] Extraordinary Chambers in Cambodian Courts, Summary of Trial Chamber Judgment in Case 002/02, November 16, 2018.
[16] FIDH, Cambodia: In landmark verdict, Khmer Rouge court recognizes forced marriages as crimes against humanity and convicts former Khmer Rouge leaders of genocide, November 19, 2018.
[17] Extraordinary Chambers in the Courts of Cambodia, Summary of Trial Chamber Judgment in Case 002/02, November 16, 2018, paragraph 40.
[18] Special Criminal Court of the Central African Republic, Investigation, prosecution and investigation strategy, 10 February 2020, paragraph 57.
[19] Special Criminal Court of the Central African Republic,Press release relating to the decision of the indictment chamber in the case of the Koundjili and Lemouna killings, SPC Press Release No. 171221, December 20, 2021.
[20] Justince info.Central African Republic: the first judgment of the Special Criminal Court. November 1, 2022
[21] TRIAL International,Hissene Habre, July 27, 2020.