Rape and War: Important Changes at the ICC

Eesha Pandit

The International Criminal Court's newest investigation is its first case in which the number of mass rapes outnumbers the number of mass killings, supporting the argument that war is a women's rights issue.

Since as far back as we can remember, mass killings have been considered a crime against humanity, as well they should be. Acts of sexual violence, however, were not afforded the same status. Crimes of mass rape are often placed in a separate and unequal category, betraying the international legal community's longstanding shiftiness in acknowledging sexual assault as crime against humanity. With our humanity in question, do we need any additional evidence that in many social and legal arenas women are not considered fully human? Thankfully, the International Criminal Court (ICC) has just taken an important step in the right direction.

The ICC, a permanent tribunal based at The Hague in the Netherlands, can investigate and try individuals for such serious international crimes as genocide, crimes against humanity, and war crimes. The ICC is the first standing court of its kind and on July 17, 1998, one hundred and twenty countries voted to adopt the treaty outlining the establishment and structure of the International Criminal Court. As of November 1, 2006, 104 countries have ratified it. The treaty entered into force on July 1, 2002 and the court can only take cases that occur after that date.

On May 22nd the ICC opened an investigation that, from the inception, would place crimes of mass rape alongside those of mass killings. The ICC's newest investigation will examine alleged war crimes and crimes against humanity committed in the Central African Republic (CAR). In October 2002, former Army Chief of Staff François Bozizé launched a coup against then-President Ange-Félix Patassé. This led to the overthrow of Patassé's government in March 2003. During the five-month armed conflict, Patassé enlisted the support of militia from the Democratic Republic of Congo, and mercenaries from Chad and Libya, to defend the capital, Bangui, from rebel attacks. These troops are accused of committing widespread crimes in the capital and other regions, including summary executions, rape and other sexual violence, enforced disappearances, and looting.

In mid-2004, judicial authorities in CAR instituted criminal proceedings against Patassé and several military commanders for crimes committed against the civilian population. Later, the Court of Appeals recommended referring the crimes to the ICC, and the government followed this advice. The highest court in CAR subsequently confirmed the Court of Appeals decision, citing the inability of the national judicial system to effectively investigate and prosecute the relevant crimes. For more details about the conflict and crimes see Alyson Zureick's excellent article in the American Prospect.

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The events in the CAR are the first case for the ICC in which the number of mass rapes outnumbers the number of mass killings. The decision by the ICC is significant because it marks the acceptance of an argument that activists working for women's human rights and sexual and reproductive autonomy have made time and again: war is a women's rights issue. Women's bodies are often the sites at which battles are fought and boundaries are drawn. Rape and sexual violence are persistent components of conflicts—components that are often overlooked and not considered formally as crimes against humanity in the way other forms of warfare are. From Zureick:

In this case, 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."

Despite progress, several challenges remain. The ICC must structurally adapt if it is to adequately prosecute gender-based violence. The office of the prosecutor yet lacks a senior advisor to assist on issues of gender-based crimes—the position was advertised but never filled. Further, the ICC must face the problem of time. In the case of the CAR, there has been a 4-year gap between the end of the conflict and the start of investigations, especially pronounced since the ICC is designed to complement existing national judicial systems and will step in only if national courts are unwilling or unable to investigate or prosecute such crimes. Additionally, similar attempts made by international criminal tribunals for the former Yugoslavia and Rwanda have demonstrated how tough it is to convince judges that military and civilian leaders are accountable for crimes of sexual violence committed when they were not physically present themselves, despite the fact that these crimes were instituted as tactics of war under their leadership.

This move, made by the ICC last month, is both a move in the right direction and a reminder of how far we have yet to go. Yet perhaps we can remain optimistic that the first step in rectifying a problem is acknowledging that it exists, and with such a ruling, the ICC has taken this important first step.

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