One of Fatou Bensouda‘s missions as the new chief prosecutor for the International Criminal Court is to make rape during conflicts a thing of the past. Until 20 years ago, she said in a speech at the United Nations recently, sexual violence and other sexual attacks were “all but ignored and dismissed as regrettable but unavoidable,” deemed a “just reward for fighting soldiers.” The documentation of women who were raped or murdered through sexualized torture during World Wars I and II and the Nuremberg trials of the latter largely ignored these crimes.
For too long, Bensouda said, those who committed rape and other gender-based crimes believed they could – and did – get off scot-free.
“But now, with the commitment of States, the initiatives of the United Nations and civil society, and the work of the International Criminal Court, that has changed, and now is time for action,” Bensouda said, speaking at a panel series on women, peace and security on Dec. 12. The panel was held by Liechtenstein's mission to the UN, the Liechtenstein Institute on Self-Determination at Princeton University and the PeaceWomen Project.
As if reflecting Bensouda's challenge to wipe out rape during conflicts, she addressed an audience of mostly women — and few men — at the UN, a fact that Christian Wenaweser, Liechtenstein's ambassador to the UN and moderator of the panel, noted with regret. Emphasizing her office's priority during her nine-year tenure as prosecutor, which began in June, Bensouda said, nevertheless, that “we are at a historical juncture where the investigation and prosecution of these crimes must be made a priority.”
The war crimes tribunal for the former Yugoslavia, set up in 1993, was one of the most important judicial systems trying and convicting individuals for rape; while gang rapes in the 1994 Rwandan massacre were prosecuted as genocide by another UN-led tribunal.
The British government has also stepped up to the cause, announcing a program to help stop sexual violence against women in war zones by organizing a rapid response team of psychologists and others to send to areas that need assistance.
The UN's commitment is grounded in a 12-year-old landmark Security Council resolution, 1325, on women, peace and security as well as later resolutions. These frameworks require the presence of women at negotiating tables and as “leaders in peace-building and peace-making efforts,” Bensouda said. Yet women's participation in high-level peace talks has been virtually nonexistent.
One of the resolutions, however, designates a UN special representative for sexual violence in conflict, a post that is currently held by Zainab Hawa Bangura, a former health and sanitation minister from Sierra Leone.
At the court, Bensouda, a Gambian, has appointed a new special gender adviser, Brigid Inder, to a one-year term to strengthen the institution's “gender analysis,” prosecute sexual and gender-based crimes, consolidate its work on gender issues and enhance relations with grass-roots women's groups and others during investigations.
Inder, who like the court is based in The Hague, also runs the Women's Initiatives for Gender Justice, a nonprofit group that has been striving to bring more sexual violence charges to the court's agenda but with little luck. Many charges have been dismissed — a problem, Inder said in an interview in August with PassBlue, related to court “leadership” and difficulties in researching such crimes firsthand in conflict zones.
The court's Dec. 18 acquittal of Mathieu Ngudjolo Chui is a case in point. Ngudjolo, a Congolese, was accused of crimes against humanity and war crimes in a village massacre in eastern Democratic Republic of the Congo in 2003. The court dismissed the case, saying the prosecutor had not proved beyond reasonable doubt that Ngudjolo commanded the slaughter in Bogoro; his verdict is being appealed.
The Ngudjolo trial was a first for the court in trying an individual on charges of sexual violence, including rape and sexual slavery.
In the court's one conviction so far, Thomas Lubanga, a Congolese warlord, was found guilty of conscripting and using child soldiers and sentenced to 14 years' imprisonment. His troops also turned girls into sex slaves during a rampage in northeastern Congo from 2002 to 2003, but Lubanga was not tried for that action.
In another first, possibly one of the most dramatic for the the court so far, it unsealed charges recently against a woman: Simone Gbagbo, the wife of Laurent Gbagbo, the former president of Ivory Coast, who is accused by the court of crimes against humanity and whose hearing begins Feb. 19.
Simone Gbagbo is similarly charged with rape, murder and other forms of sexual violence committed by loyalist forces during post-election violence in the country in 2010 and later. She is accused of participating in meetings to map out the violence and “instructed the pro-Gbagbo forces to commit crimes against individuals who posed a threat to her husband's power,” the charges say. She is now jailed by the government of Ivory Coast and under investigation there, so it is unclear if she will be extradited to the International Criminal Court.
Jean-Pierre Bemba, another Congolese rebel, is on trial for war crimes and crimes against humanity committed in the Central African Republic from 2002 to 2003. His case is the first time in international justice that reports of sexual violence outnumber alleged murders. The trial was suspended until March 4 for his counsel to prepare for a technical change — the characterization of his role in the crimes — the judges may make in the charges against him.
The invigorated push to confront wartime sexual violence by the court and others coincides with a new Human Security Report, produced in late 2012 by a research team affiliated with Simon Fraser University in Vancouver and directed by Andrew Mack, who was director of the strategic planning office for Kofi Annan, the previous UN secretary-general.
The study says that the majority of countries in conflict report “far less” levels of sexual violence than the media proclaim, and that the evidence “suggests that the level of sexual violence worldwide is likely declining,” an assertion that has generated controversy in the blogosphere.
It also says that the media's “mainstream narrative systematically neglects domestic sexual violence in war-affected countries, even though it is far more pervasive than the conflict-related sexual violence” committed by rebels, militias and government troops. Moreover, the extreme sexual violence occurring in a small number of war-affected countries, most predominately in Congo, skews the overall picture, the study suggests.
A debate of scholars on conflict-related rape and other sexual violence posted on a blog contend the report's finding of declining levels of such crimes is “no more supported by data (indeed, somewhat less supported by data) than claims about the rising incidence of wartime sexual violence.” They also say the report did not fully present the data about wartime rape.
The scholars, Amelia Hoover Green of Drexel, Dara Kay Cohen of Harvard and Elisabeth Jean Wood of Yale, disagree over the report's conclusion on falling rates of wartime rape and bemoan that the assertion is grabbing more attention than other important information in the study, like exploring why some armed groups commit a lot of wartime rape and why others do not—often in the same conflict.
“The fact that some armed groups engage in little sexual violence shows that wartime rape is not inevitable, and strengthens the grounds on which to hold accountable those groups that do engage in sexual violence crimes,” Wood, a political science professor at Yale and a co-author of the blog, said in an e-mail to PassBlue.
The debate also continues as a shocking gang rape of an Indian woman in December led to her death and took place in a peacetime country, revealing India's misogynist culture, an Indian BBC commentator wrote. A new book, “Public Secrets of Law: Rape Trials in India,” by Pratiksha Baxi, refers to the government's archaic “two finger test,” used in courtrooms sometimes to introduce her sexual history into the proceedings.
While Bensouda was at the UN in December, she briefed the Security Council on four cases outstanding from Darfur, Sudan, including the warrant against President Omar al-Bashir, who is accused of genocide, rape and a string of other atrocities. It was the prosecution's 16thbriefing on the Darfur cases since the council referred the situation to the court in 2005.
Clearly exasperated, Bensouda told the council that crimes continue in Darfur, including possibly genocide and attacks on civilians. She asked the council for more support in carrying out the warrants and in investigating new crimes allegedly committed by the Sudanese government.
“The question that remains to be answered is how many more civilians must be killed, injured and displaced for this Council to be spurred into doing its part?” she asked the 15-member group and Sudan's ambassador to the UN.
In other news, the court hired three special advisers to its staff: Patricia Viseur Sellers, Leila Nadya Sadat and Diane Marie Amann. Sellers specializes in international criminal law prosecution strategies; Sadat is an expert on crimes against humanity; and Amann will focus on children in armed conflict.