On March 21st 2016, the International Criminal Court (ICC) rendered its judgement in the case of Jean-Pierre Bemba Gombo, who was the President and Commander-in-Chief of the Mouvement de Libération du Congo (MLC). The Trial Chamber III found him guilty beyond any reasonable doubt of two counts of crimes against humanity - murder and rape - and three counts of war crimes - murder, rape and pillaging.
Bemba stood trial and was sentenced guilty as a military commander for the crimes committed by his soldiers in the Central African Republic between 2002 and 2003. During the trial, it was demonstrated that, when the MLC soldiers intervened in the Central African Republic to assist the then President Ange-Felix Patassé to repress a military coup, they engaged in a campaign of pillage, murder and rape against the civilian population.
The importance of this judgment has to be considered in the light of the fact that Bemba is not only the first person to be convicted by the ICC as a military commander for the crimes committed by his troops, but also the first person to be convicted by the ICC for sexual violence crimes. In fact, recalling the previous cases decided by the Court, it can be observed that despite in each of them there were evidence of a widespread commission of sexual offences, the Prosecution failed to prove the personal responsibility of the accused. Thomas Lubanga Dyilo was convicted in 2012 for war crimes committed in the Democratic Republic of the Congo (DRC), but his case did not include sexual violence charges. Mathieu Ngudjolo Chui and Germain Katanga, also accused of crimes committed in the DRC, were tried for rape and sexual slavery, but Ngudjolo Chui was acquitted in full in 2012 and Katanga, though convicted for other crimes, was acquitted as an accessory to rape and sexual slavery in 2014. Therefore, Bemba’s conviction represents an important turning point for the ICC in granting accountability for sexual offences.
The ICC Chief Prosecutor, Fatou Bensouda, pointed that the judgement of conviction for rape rendered against Bemba represents a step towards addressing sexual violence and gender-based crimes used as a weapon in conflicts. The Court emphasised that the evidence also evinced certain specific motivations and objectives behind the commission of rape: “Indeed, some MLC soldiers considered victims to be ‘war booty’ and/or sought to destabilise, humiliate, and punish suspected rebels and rebel sympathisers. Such objectives were often realised: rape victims experienced significant medical, psychiatric, psychological, and social consequences, including PTSD, HIV, social rejection, stigmatisation, and feelings of humiliation, anxiety, and guilt.”
The Court heard witness statements about rape committed by the MLC forces in public, rape in front of family members and communities, gang rapes and rape of young girls and found Bemba responsible for these crimes.
Ending impunity for commanders and leaders who fail to exercise the duties and the responsibilities that their status entails is one of the primary aims of the international criminal justice, to eradicate mass atrocities. However, in the case of sexual crimes, such a form of liability relented to be established, because traditionally sexual crimes were merely regarded as by-products of wars. More specifically, it is from the 1970s onward that the international community developed a growing consciousness of the need ensure justice for the increasing number of victims of wartime sexual violence. Nowadays indeed, it is well known that rape is part of the war tactic aimed at the destruction of the enemy, both physical and moral. In general, sexual violence is used against the enemy -male and female indiscriminately, though women are the principal target- to affirm domination on the individuals and, on a wider scale, on the community to which the victims belong. The perpetrators are aware of the social role of women as caretakers of the family and of men as protector of the family: undermining these roles, they intend to destroy the social relationships existing within the community, ultimately provoking its collapse. Indeed, survivors of rape become outcasts in their community because of the stigma connected to rape and this is exactly what perpetrators exploit, giving rise to a ripple effect that from the victims expands to the community in its entirety. That is why sexual violence has developed as a weapon of war, or rather a “gendered weapon of war”, which is a very effective one.To stop the use of sexual offences as a weapon, the ICC is thus focussing on ensuring that not only the direct perpetrators, but also their superiors who condone or order the commission of such atrocities, are held accountable.
As to the Chamber’s legal analysis of the crime of rape, the Court addressed rape both as a war crime and as a crime against humanity, because the contextual elements differ. War crimes require the crime to be committed in the context of an armed conflict; instead, crimes against humanity require the crime to be committed in the context of a widespread or systematic attack against a civilian population. In this respect, the Chamber examined the problem of ne bis in idem and concluded that, although the charges of rape as a war crime and a crime against humanity are based on the same underlying conduct, these are not “impermissibly cumulative” because war crimes and crimes against humanity have materially distinct elements. In this respect, the Court followed the solution on cumulative convictions adopted by the previous international and internationalised courts and tribunals, as, for instance, the International Criminal Tribunal for the former Yugoslavia, International Criminal Tribunal for Rwanda, and the Special Court for Sierra Leone.
As to the material elements (actus reus) of rape, the Court explained that the crime consists of an “invasion” of a person’s body by a conduct resulting in penetration of any part of the victim or the perpetrators’ body with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body. Such a definition, based on the concept of invasion, is intended to be gender-neutral: both male and/or female can be perpetrators and/or victims.
Moreover, for the invasion of the body to constitute rape, it has to be committed under one or more possible circumstances emphasizing the inability of the victim to self-determination: (1) by force; (2) by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person; (3) by taking advantage of a coercive environment; or (4) against a person incapable of giving genuine consent.
As to the mental element, the Court found that it has to be proven that the perpetrator intentionally committed the act of rape, being aware that the act was committed under the circumstances set above.
The Court found Bemba guilty pursuant to the “command responsibility” mode of liability, because, although he did not commit the acts of rape personally, he knew that the troops under his effective authority and control were committing them and did not take all the necessary and reasonable measures within his power to prevent or repress their commission. The Trial Chamber analysed in detail the evidence at the basis of Bemba’s personal responsibility and found that he was the MLC’s military and political leader, the organization’s figurehead and source of its “funding, goals, and aims” from its creation throughout the entire period of the charges. He held the ultimate authority over the decision-making and broad powers, including operational command over the troops and close control over the MLC’s finances and expenditure. In order to establish if the accused had effective authority and control, the Chamber assessed his material power to prevent or repress the commission of crimes or to submit the matter to a competent authority and concluded that Bemba maintained such a disciplinary authority over his troops throughout the 2002-2003 CAR Operation, as he was effectively acting as military commander.
Analysing some of the measures Bemba took when he received the information of the widespread crimes committed by MLC soldiers, the Chamber concluded that they were inadequate, not genuine and primarily motivated by his desire to rehabilitate the public image of the MLC. In fact, such measures concerned only (and even then to a very limited extent) the public allegations of crimes: the Court observed that there was no evidence that Bemba, as a de facto military commander, tried to intervene when the information of crimes were just internally transmitted.
In conclusion, Bemba was convicted because he had the authority to prevent, investigate and prosecute the crimes; he had the duty to stop his soldiers from committing the crimes, but he voluntarily failed to exercise his position of command properly. These failures directly contributed to the continuation and further commission of the crimes by his troops, ultimately encouraging it. This is why bringing military commanders and superior leaders to trial for the crimes committed by their subordinates that they failed to prevent or punish is a crucial step in ending impunity and prevent the commission of mass atrocities during wars. The conviction of Bemba by the ICC, being the first one based on command responsibility for sexual violence crimes, is therefore a landmark judgment, which will contribute to shape the evolution of the international criminal law.
Martina Roberta Manenti, University of Milan.