Sexual violence has never gained much attention during conflicts. Very few prosecutions have been brought at global level and even fewer instances have been sentenced.
In national jurisdictions, the level of convictions concerning conflict-related sexual violence is exceptionally small and, as the United Nations Secretary-General’s 2019 Report on Conflict-Related Sexual Violence states, the elusiveness of justice is due to the obstacles that justice systems impose on victims and the limited capacity that countries have to explore these kinds of crimes.
It also reduces the probability of accountability by the stigma, fear, and dismissal that victims of sexual offences often face.
On 8 July, the International Criminal Court’s Trial Chamber VI (ICC) convicted Bosco Ntaganda of 18 counts, including rape and sexual slavery as war crimes and offences against humanity.
The decision on the Bosco case is particularly crucial because it is the first individual to be prosecuted for sexual slavery in the ICC’s history and also because it establishes an unmistakable precedent for prosecution in conflict-related sexual violence instances, which is scarce in the ICC.
Not only is the existence of conflict-related convictions of sexual violence scarce within the ICC, but it was also restricted in the rulings of the former Yugoslavia and Rwanda international criminal tribunals and was almost non-existent in national courts.
The case against Jean-Paul Akayesu, ruled by the International Criminal Tribunal for Rwanda (ICTR), was the first case in which sexual violence was fully prosecuted in an international tribunal and marked a major step forward in court as a high-ranking official was convicted of his subordinates ‘ actions.
The ICTR subsequently sentenced the first female in 2011 as a crime against humanity for acts of rape. The tribunal found Pauline Nyiramasuhuko, a former Rwandan minister, guilty on ethnic basis for acts of rape as a crime against humanity as she helped and ordered Tutsi women’s rapes.
In an unprecedented case, Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic were charged and sentenced by the International Criminal Tribunal for the former Yugoslavia (ICTY) for counts of sexual violence in conflict situations.
During the conflict in Bosnia and Herzegovina, the three men were found guilty of enslavement, rape and torture of dozens of Serbian women as part of the systematic attack on non-Serbian civilians, and although they were not commanders or had any position of authority in this case, they committed the crimes in connection with the armed conflict.
One of the most significant components of this decision was linked to the definition of rape, where the tribunal found the force or danger of force, as well as the resistance of the victim, not crucial to the qualification of the behaviour. Instead, the court regarded that the essential component in the definition of rape is the absence of approval of the victim and the violence, struggle and manifestation of rejection are not conditions of the criminal act in any situation.
In the first decision on the Bemba case, the International Criminal Court sentenced former military commander in the Central African Republic Jean-Pierre Bemba for rape and murder crimes committed by his soldiers as war crimes and offences against humanity.
Here, Commander Bemba was regarded by the Trial Chamber to have efficient control over the forces of the Congo Liberation Movement (MLC) and as such to be criminally liable under the command responsibility components of Article 28 of the Rome Statute.
Despite the above, the Appeals Chamber considered on the evaluation of the judgement a more rigid approach to command accountability and instead implemented ideas linked to direct and indirect co-perpetration, which ultimately led to the defendant’s acquittal in charging sexual offences.
Since the advent of the Rome Statute, the ICC has maintained its record of zero final convictions regarding sexual violence. However, with the above judgment of 8 June 2019, Bosco Ntaganda’s conviction of rape and sexual slavery crimes could symbolize a win for conflict-related sexual victims and the end of sexual and gender-based crime impunity.
