New Attention Paid to an Old Crime of War

On May 22nd, Luis Moreno-Ocampo, the chief prosecutor for the International Criminal Court (ICC), made a landmark announcement: For the first time in its short history, the Court was opening an investigation that, from the start, would prioritize crimes of mass rape along with mass killings.

The prosecutor's announcement was a significant step forward for African civil society groups and their international partners across the continent that have been working to collect evidence and push the ICC to investigate and prosecute crimes of sexual violence. Yet this victory has been hard won, and there is no guarantee that the ICC's new-found focus on sexual violence will translate into long-term gains for victims of these crimes.

The ICC's newest investigation will examine alleged war crimes and crimes against humanity committed in the Central African Republic (CAR) between late 2002 and early 2003, following a failed coup attempt by General François Bozizé against the civilian president, Ange-Félix Patassé, and just prior to a second, successful coup attempt by Bozizé. (He is now the president of CAR). Human rights groups and the Bozizé government claim that Patassé's troops terrorized the civilian population around the capital, Bangui, to punish them for supporting the first attempted coup. These groups also claim that the troops were assisted by militias from the neighboring Democratic Republic of the Congo (DRC) loyal to Congolese official Jean-Pierre Bemba. Moreno-Ocampo has insisted that his office is not yet targeting any particular suspects. The investigations are expected to last about 18 months.

The situation in CAR is the first conflict the ICC has investigated in which mass rapes appear to have outnumbered mass killings. Local and international NGOs have documented more than 1,000 incidents of rape during the time period in question, and the ICC's office of the prosecutor has verified 600 incidents. "Many groups of women have taken immense risks to bring forward their testimony," said Beatrice Le Fraper Du Hellen, director of the Jurisdiction Complementarity and Cooperation Division of the ICC. "Some are very threatened, and we have taken protective measures for many of them prior to announcing the investigation."

Much of the testimony on sexual violence submitted to the ICC was gathered by local NGOs like the Organization for Compassion and the Development of Families in Distress (OCODEFAD). "We found in 2002 that survivors of the violence had come together to take care of the victims of sexual violence because they were stigmatized in their communities," reports Marceau Sivieude, the Africa Desk Director for the prominent human rights organization Federation for Human Rights (FIDH). "They had also decided to gather evidence of these crimes and fight for national justice."

Between 2002 and 2007, FIDH assisted OCODEFAD and the Central African Human Rights League (LCDH) in gathering testimony and lobbying the ICC to investigate. FIDH submitted its first report to the office of the prosecutor in early 2003, but received no response. The ICC did not begin an official analysis of the situation until months after the CAR government referred it to the Court in 2004. As the ICC began its analysis, reports and testimony continued to flow in from local groups. By the time the ICC was ready to launch an official investigation, it was obvious that investigating sexual violence needed to be a priority.

The ICC prosecutor's focus on sexual violence in CAR has been so widely hailed in part because, like its cousins, the international tribunals for the former Yugoslavia and Rwanda, the ICC has had a spotty record of addressing crimes of sexual violence. Most notoriously, the office of the prosecutor failed to bring charges of sexual crimes in its first case, that of Thomas Lubanga Dyilo. Ample documentation by international organizations and local NGOs indicated that the armed militia group Lubanga led had committed widespread abuses in the DRC.

"The evidence was clear that rape and other forms of sexual violence had been widespread and systematic," said Brigid Inder, the executive director of the Women's Initiatives for Gender Justice, the only international women's NGO working on sexual violence with local women's groups in each of the countries currently on the ICC's docket. "The prosecutor’s first investigations in the DRC were narrow and poorly conducted. They failed to pursue and follow up on leads in relation to gender-based crimes." Consequently, when the time came for the ICC to issue an arrest warrant for Lubanga, it only had sufficient evidence for charges of child soldier conscription -- a serious charge but one that hardly reflects the range of crimes documented in eastern DRC.

Today, Congolese NGOs are, like their CAR counterparts, working to make sure these problems do not recur. They have ramped up their efforts to document sexual violence in eastern DRC and gather evidence that will assist the ICC in bringing such charges in future indictments, according to Christian Hemedi, president of the Coalition of Congolese NGOs for the ICC in Kinshasa. The Coalition coordinates efforts by NGOs in the DRC to provide information and evidence to the ICC and encourage the DRC government to cooperate with the ICC. The Women's Initiatives for Gender Justice is also continuing its work with local women's NGOs to document sexual violence and lobby the ICC on these issues.

Civil society efforts appear to have had an effect on the ICC. A second investigation is under way in the DRC, and the ICC anticipates that a third will be launched in the near future. It is expected that sexual violence will be covered in the resulting indictments, Le Fraper Du Hellen said. The ICC's office of the prosecutor has made strides in investigating and indicting crimes of sexual violence in other countries, largely thanks to continued pressure from local and international women's NGOs. In the case of Darfur, the prosecutor's office at first hesitated to pursue charges of rape, fearing that it would take too long to investigate and that the acts would be too difficult to prove, Inder said. The office quickly changed its mind after further information on gender-based crimes was provided, and in early May, the ICC issued arrest warrants for two Sudanese leaders on counts of crimes against humanity and war crimes. Rape is included in the charges for both men.

Despite some advances, significant gaps remain. The ICC has issued five arrest warrants for leaders of the rebel group the Lord's Resistance Army (LRA) in Uganda, but only two have been charged with rape despite existing evidence that indicates each of the suspects could be reasonably charged with this crime, Inder said. And the ICC office of the prosecutor continues to lack a gender advisor who would be a part of the senior decision-making team. "The position has been advertised in the past but never filled," said Inder. The ICC does run a Gender and Children Unit that undertakes psycho-social assessment of witnesses and victims of gender based crimes, though the unit lacks the specific legal mandate that a gender advisor would possess.

Additionally, the ICC faces procedural challenges for securing justice for those who suffered during conflict. In the case of CAR, there is concern that, given the four-year gap between the end of the conflict in question and the beginning of the ICC's investigations, it will be difficult for the prosecutor to find evidence that will stand up in court, Sivieude said. The ICC is a court of last resort, and could not begin its work in CAR until the national court determined that the domestic legal system was not capable of handling the proceedings.

Experience with the international criminal tribunals for the former Yugoslavia and Rwanda have also shown that it can be difficult to convince judges that military and civilian leaders are accountable for crimes of sexual violence committed under their leadership when they themselves are not physically present, according to Kelly Askin, a senior legal officer with the Open Society Justice Initiative. In CAR, it will be important for the prosecutor to present solid evidence that key leaders commissioned, committed or had command responsibility for acts of sexual violence.

Thus, while the ICC's newly announced investigations are a step in the right direction, the Court has its work cut out for it when it comes to actually collecting criminal evidence and prosecuting these crimes in CAR and other countries. Given the Court's uneven record on these issues, local and international activists are prepared to continue lobbying hard for these crimes to be taken seriously in the Court's proceedings.

"The gains that have been made for victims of sexual violence have been hard fought by a small number of local and international women's NGOs every step of the way," Inder said. "Continued pressure will be needed to ensure that the ICC follows through on this progress and ends impunity for perpetrators of such crimes."

Amaka Megwalu contributed reporting from the Democratic Republic of the Congo.