Introduction
Sexual crimes are some of the atrocities common during armed conflicts. According to Jurasz, it is rare to find cases where serious armed conflict does not involve sexual crimes against women and minors. It was reported during the Holocaust in Germany, the genocide in Rwanda, and currently in Syrian civil war. Sexual crimes have profound impact on victims. First, there is the physical pain that the victim go through during and soon after the ordeal. However, the psychological torture is often greater and last longer. Some of these war criminals are so inhuman that they rape their victims in front of their loved ones. The emotional torture that results from such experiences may be too heavy to bear. Some develop posttraumatic stress disorder that last for very long time. Jurasz explains that such experiences may affect one’s ability to have successful relationships.
The memory of the attack leaves a lasting impression that makes it difficult for one to trust again. In the United States, and all countries around the world, the law exists that defines the nature of punishment that a rapist should face. However, in cases of armed conflict such as the one going on in Syria, the magnitude of such crimes and other atrocities makes it impossible for the local law enforcement authorities and legal systems to mate appropriate punishment against the perpetrators.
The International Criminal Court (ICC) is expected to step in when a country’s legal system incapable or unwilling to punish such individuals. However, explains that it is often not possible to take all the perpetrators to this court. Over the recent past, hundreds of thousands of women and young children in Syria have been subjected to various forms of sexual assault. The offenders are the war criminals from the government forces, the ISIS fighters, and the rebel forces directly involved in the war. Aleppo is one of the regions that have registered the highest rates of sexual crimes.
Taking all the offenders to the ICC may not be possible because of various reasons. It may not be reasonably possible for the international society to identify all offenders involved in the crime, given the fact that some of the victims have moved away from the country and settled in North America, Europe, and other peaceful countries in the Middle East. The ICC also lacks the capacity to try all the war criminals, just as it was determined in the case of Rwandan Genocide. As such, the court often goes after those who are believed to have the highest responsibility in such crimes. They include individuals such as the commanders and political leaders. One of the main questions that often arise is the effectiveness of this court to punish sexual crimes in a way that would bring justice to the victims. In this paper, the researcher seeks to evaluate the role of the International Criminal Court of Justice in punishing sexual crimes in armed conflicts.
Discussion
The International Court of Justice is often seen as a court of last resort for victims of sexual crimes in armed conflicts in instances where it is apparent that the national legal system in unable or unwilling to prosecute the perpetrators. Cohen and Nordås explain that the ICC has an important role of prosecuting suspects believed to have played critical roles in such crimes. It may be possible that such suspects were not directly involved in the sexual crimes. However, their positions as the commander of the armed militia or government troops make them responsible for the crimes committed by their subordinates. The court was established as an institution that facilitates disputes pitting one country against the other. Its role evolved to include addressing cases that cannot be properly addressed by the local legal systems within the country because of various reasons. It is important to look at the role of the ICC in punishing sexual crimes in armed conflict and how effective the court has been in this mandate.
Punishing Sexual Crimes through ICC
According to a report by Escudero, women and children often go through a lot during armed conflicts. Other than the pain, torture, and possible murder that they face, there is also the problem of rape and other forms of sexual violence. In northern Nigeria, over 200 girls were kidnapped in a school by Boko Haram, one of the leading terror outfits in West Africa. The women were married off to the Boko Haram soldiers. In Somalia and Darfur in Southern Sudan, women and young girls have been subjected to rape and sexual torture during the armed conflicts. The same problem has been witnessed in Congo, parts of Uganda, Burundi, and Rwanda. During the Arab Spring, many women were raped in Libya, Syria, Yemen, and Iraq. Every time a region experiences the problem of armed conflict, one of the common atrocities is sexual violence against women and young girls.
In fact, a report by Escudero indicates that one of the motivations of the militias during the recruitment is that they will have power to rape as many women and girls as they wish. Others who are HIV-positive have embraced the myth that when they have sexual intercourse with minors, they can be cured of their disease. It means that these victims do not just endure the physical and emotional pain that arise from the rape, but also different sexually transmitted diseases.
According to Escudero, one of the main challenges when seeking for justice in such cases is how to punish the individuals who play leading roles in such assaults. The minor officers can easily be prosecuted within the legal systems of the country if there is goodwill from the leadership. However, sometimes the commanders who are involved in such crimes end up in positions of power. In such positions, it is almost impossible to prosecute them, especially in dictatorial regimes or corrupt systems where the rich and powerful always have their way. The ICC is often seen as the court of last resort. Victims view the court as an impartial institution that cannot be swayed by the riches and power of the victims. The role of this court is to ensure that these powerful individuals are brought to justice in an environment where their influence and power plays no role in the quest for justice.
Success Made by the ICC to Prosecute Sexual Crime Suspects
The International Criminal Court has made a lot of effort to ensure that sexual crimes during armed conflicts are effectively punished. Although political leaders and academicians have criticize the court for its inability to prosecute cases directly related with the World War II, it has tried to be firm in cases that happened after that. It has successfully prosecuted prominent people who were sentenced to jail term for their active involvement in crimes against humanity. The following are some of the successful cases tried and individuals responsible sentenced to serve time in jail.
Prosecutor v Jean-Pierre Bemba
Jean-Pierre Bemba was the founder and commander of the Movement for Liberation of Congo (MLC) that was partly responsible for the overthrowing of the Kinshasa government in 1998. It became registered as a political party though it had an active military wing that was in direct command of Bemba. In 2002, President Ange-Felix Patasse of the Central African Republic requested a military support from Bemba’s MLC to suppress militia that was planning a coup d’état. Bemba responded to the request from the friend by sending his troops to the Central African Republic.
The militants committed serious crimes against humanity in the regions where they were sent. They directly engaged the rebels in armed battle. They also killed or maimed civilians, especially women and children who were not directly involved in the war. One of the worst crimes committed by these militias was wanton rape that mainly targeted underage girls. Some of the victims were gang-raped by over ten men at a time. Some reported that they fell unconscious during their ordeal and were rescued by well-wishers before being taken to hospital. Scores of young girls became pregnant because of the rape while other unlucky ones contracted sexually transmitted diseases such as syphilis, gonorrhea, and HIV. Their lives were completely destroyed by a war they were not party to, and some lost their lives in the process.
When the case was presented to the International Criminal Court, the pre-trial Chamber was convinced that Bemba had a case to answer at the court. A warrant for his arrest was issued and after the ruling. When he realized that the court had issued the warrant, he fled to Belgium in 2008 where he was arrested and taken to the ICC. He was charged with crimes against humanity pursuant to Article 25(3) (a) of the Rome Statute. The Pretrial Chamber II confirmed the charges in 2009. According to Fountain, Article 28 of the Rome Statute holds military commanders and superior officers of militia groups criminally liable for actions taken by their junior officers under their command.
The court held that although Bemba remained in the Democratic Republic of Congo during the time the crimes were committed by his officers, he could not claim ignorance to their activities in the Central African Republic. As the commandant of the force, it was his responsibility to define actions of the soldiers. As such, he was found guilty of murder and rape that were committed by his officers under Article 28 of the Rome Statute of the International Criminal Court. It was one of the major cases that were successfully tried at the court. It set a very important precedent that those at the top will always be held liable for the criminal acts of their subordinates.
Prosecutor v Akayesu
The 1994 Rwandan genocide is one of the worst historic moments in the country and the world at large. It was established that there was a deliberate attempt by the Hutu extremists in control of instruments of power to eliminate Tutsis and moderate Hutus as a way of eliminating them from the country’s socio-political and economic sphere. The ethnic cleansing was a deliberate attempt to ensure that the dominance of the Hutus remained unquestionable in the country. One of the leading Hutu political leaders that facilitated the mass murders was Jean-Paul Akayesu who at that time was a municipal administrator in Rwanda’s Taba Commune. He issued orders to the militia to attack Tutsis hiding in churches, schools, and other places within his area of command. He was also responsible for the distribution of swords and other crude weapons that were used in the execution of crimes.
The reports indicate that Akayesu himself was directly involved in some of the attacks as a way of motivating the militias to rid the region of all Hutus. He led some of his men in raping some of the Tutsi women and girls before executing the victims using swords and knives. He was also one of the most important coordinators who implemented the orders that came from the top military commanders. By the time the reign of terror was brought down by the rebel forces led by Paul Kagame, thousands of Tutsis had been killed under his direct command. He and his men had also raped thousands of women and girls, most of who were not lucky enough to survive the ordeal. However, some survived even after the atrocities and narrated the pain and torture they went through in the hands of Akayesu. The administrator was arrested in 1995 and taken to the ICC on charges of mass murder and rape.
The Pretrial Chamber determined that it was within the jurisdiction of the ICC to prosecute sexual crimes such as the one that was presented before it regarding the Rwandan Genocide. The Trial Chamber established that these acts fell within the ambit of genocides provision as defined in the Tribunal’s statute. For the first time in the history of the court, rape was regarded as a weapon that can be used in genocide. The prosecution explained that some of the victims of rape were younger than 8 years. The ordeal was too much to bear, and some died soon after without being subjected to any other physical torture. It meant that rape was just as dangerous as using other weapons in eliminating targets.
It was also established that some victims took their lives after the being raped because of the nature of the incidents. Some mothers were raped in front of their children. In other cases, parents were forced to watch as their teenage girls were gang raped by the criminals. Some of these parents or the victims could not live with the shame, and as such, took their lives soon after. It is worth noting that the decision of such individuals to commit suicide arose directly from the sexual torture they endured or witnessed during the war. He was found guilty of crimes against humanity, especially of rape and mass murder of unarmed civilians within his area of jurisdiction.
Prosecutor v Kunarac
The Balkan wars led to mass murders and sexual violence against minorities in specific regions. One of the cases that finally reached the International Criminal Court was the extermination of Muslims in Foca, a name that can loosely be translated as cleansing. In the civil war that erupted in the region, there was a deliberate attempt to eliminate all Muslims from the region. The prosecution explained that the main problem that the ethnic Serbs, who were the majority in the region, was their inability to integrate into the society and embrace the socio-cultural beliefs of the majority. They were viewed as a threat to the community, and as such, the political and administrative leaders decided to eliminate them during the civil war. Soldiers were instructed to shoot Muslim men on the spot and to take into custody women and children, especially girls. Little boys, especially those aged over ten years, were to face the fate of men. Kunarac, Kovac, and Vukovic were assigned the responsibility of commanding the concentration camps.
The three issued direct orders to their officers to shot anyone who tried to escape from the camps or those who were considered problematic. Rape was one of the instruments of terror used in these camps. The officers, including the three commanders, would randomly select women within the camp and sexually abuse them as they pleased.
According to facts presented, this case slightly deviated from the precedent that had been set in the Akayesu case that was tried three years prior. Unlike the previous case where it was that genocide occurred in Rwanda, there were conflicting views about the Balkan war, with many arguing that it did not reach the level of genocide. The trial Chamber, therefore, could not convict the suspects of genocide. However, their actions were classified as crimes against humanity, a lesser crime compared with genocide. However, the prosecutors proved beyond any reasonable doubts that sexual crimes were committed against women and young girls in Forca, a municipality whose name has since been changed to Srbinje.
The court was convinced that the three administrators used their position of power to ensure that women in their concentration camps were sexually abused as a means of eliminating them from the city. It was established that some women and young girls succumbed to their injuries while in these concentration camps. It was a major victory to human rights groups around the world. It was the second case in less than five years where the International Criminal Court proved that it had a role to play in punishing sexual crimes in armed conflicts and that it was keen on accomplishing this mission.
Failure of the ICC to Prosecute Sexual Crime Suspects
The international community, especially the emerging democracies around the world often considers the International Criminal Court as the institution of last resort in handling cases of crimes against humanity. However, this court has received massive criticism by a section of the society for different reasons. Some African leaders have complained that the court only targets African nations and has done nothing to prosecute criminals from developed nations.
They often cite the case of Holocaust in Germany, stating that the court has not gone after notable figures known to have played active roles in the war. Instead, it targets low-profile individuals just to convince the international community that the court was not meant for Africans. What is even more intriguing is the fact that majority of the African leaders oppose the relevance of court while in power, but voice their support for it once they leave office. As Milton-Edwards explains, it is heartbreaking for the victims to realize that such an independent court believed to be effective and impartial, fails to punish criminals known to have committed sexual atrocities against innocent individuals. It is necessary to look at some of the major cases where this court failed to punish some of the worst cases of crimes against humanity where sexual violence was reported.
Prosecutor v Muthaura
In the Kenyan presidential election of 2007, the two main contenders were the opposition leader Raila Amollo Odinga and the sitting President Mwai Kibaki. The preliminary results showed that the opposition leader had won the election. However, the Electoral Commission of Kenya suddenly announced the incumbent as the winner with questionable figures. Immediately after the incumbent was declared the winner, violence erupted in opposition strongholds. Soon after, the supported of the president also rose up in arms to defend their community. In this case, it is reported that the Kikuyus, which is the tribe of then incumbent, received support from the government to facilitate their attack against the Luos, the main opposition stronghold. The government gave militia supporting the president weapons and police protection during such attacks.
More than one thousand people were killed and hundreds of thousands displaced. One of the worst atrocities committed against the Luos was rape and murder. Men were forcibly circumcised and others had their penile amputated. Francis Muthaura, who was the head of the Civil Service, gave the Kenyan Police direct orders not to interfere with the activities of the government-friendly militia. It means that these atrocities were committed under his direct command.
The case was brought before the judges in the International Criminal Court. The decision that was made by the Pre-Trial Chamber II disappointed many human rights activities and the victims of the war. The judges held that forced circumcision and penile amputation do not fit into the class of sexual violence as defined under Article 7(1) (g) of the Rome Statute. They court ruled that not all crimes that target private parts do not constitute sexual violence. The Chamber stated that they did not find anything sexual in such penile amputations and dismembering of the male organs, claiming that these atrocities would be classified as ‘other inhumane acts. The strong case that the prosecution had prepared to charge Muthaura of sexual violence failed to convince the Chamber. One of the worrying facts in this cases is that a precedent had already been set not only in the same court but also in other courts around the world where it was held that an attack against female genitals such as insert sharp or blunt objects into the vagina constitute sexual violence.
The ground upon which the Chamber arrived at its decision was worrying. As such, the Trial Chamber II ruled that Francis Muthaura would be charged with crimes against humanity, but not rape. Perhaps the most disappointing outcome of the case was the actual trial where all the cases against Francis Muthaura and his co-accused, the current President Uhuru Kenyatta, the current Vice President William Ruto, and other prominent politicians, were dropped for lack of evidence. It should not be forgotten that people were burnt alive in several places across the country, video evidence existed showing police officers shooting unarmed protestors in cold blood, and victims of sexual attacks were willing to narrate their case. To the court, that was not enough evidence to put the six men accused of playing leading roles in the war behind bars for their crime. To many human rights activists, that was one of the worst failures of this court. It was a demonstration to the international community that this court was not capable of punishing sexual crimes in armed conflicts.
The al-Bashir Case
Omar al-Bashir, the dictator of Sudan, is one of the current leaders who have been accused of crimes against humanity. The long-time President of Sudan has ruled with iron-fist. When the southerners started rebelling against the north demanding for secession, al-Bashir planned and executed one of the worst crimes against humanity in the modern history. The government forces, in their effort to suppress the revolt, used excess force against South Sudanese. Many were killed and women were subjected to all forms of sexual violence. McDougall reports that many young girls were kidnapped and taken to the camps where they served as wives of the government officers. Some of these girls were as young as nine years when they were subjected to the painful sexual torture. Many died of the torture they went through in these camps while others were shot in cold blood because of their lack of cooperation.
The international journalists were able to report these incidences hoping that the community, especially the ICC, will take appropriate action to address the problem. However, nothing has been done. President Omar al-Bashir was and still is the commander of the officers responsible for the atrocities is in charge of the country. He has made several international travels without being arrested despite being indicted by the international court.
According to McDougall, the case of al-Bashir is a clear indication of the weakness of the ICC. The court relies on the support of the Security Council and member states of the United Nations. When it issued a warrant of arrest against al-Bashir, the court expected the Security Council to help in the capture of the Sudanese leader. However, several clauses in the Rome Statute that define sovereignty of a country and the need to respect it limited the ability of the Security Council to invade Sudan in an effort to arrest al-Bashir. As the commander of the armed forces, it would be expected that he would order the forces to counterattack any invading foreign military. The only hope of serving justice to the victims was to arrest him when he travelled out of the country. When he travelled to Kenya in 2010, the court saw a perfect opportunity to arrest him with the help o Kenyan forces. However, that did not happen. He also travelled to South Africa in a defiant move against the court, and once again he was able to travel back to his country. It was an indication of how powerless the court is without the direct support of the member states, and especially the Security Council.
Addressing the Weaknesses
A section of the international society has criticized the capacity and willingness of the International Criminal Court to prosecute and sentence war criminals from powerful countries. Syrian government has committed serious crimes against humanity. The Syrian case can be classified as genocide because of the high number of deaths, currently standing at almost 500,000. The fact that the Russian forces are actively involved in the war, it stands accused just as much as the Syrian government.
However, it will be impossible for the ICC to prosecute the top Russian military commanders. It creates the impression that the court was meant to punish weak nations, especially from African and parts of Asia. Some cases such as the stalemate in al-Bashir case and the botched trial of top Kenyan political leaders who were believed to have played leading roles in the 2008 post-election violence also demonstrated the inadequacies of the court. Of interest in the Kenyan case was the fact that mutilation of male organs was not classified as a sexual crime while similar acts that targeted women would be considered as such, based on the precedent that had been set in the previous cases. It was a form of bias that needs to be addressed.
Men, just as much as women, can be victims of rape. Some of the injuries sustained in such sexual abuses may claim lives of the victims. The court needs to realize that men are vulnerable to such attacks as should be protected by law. The ICC Draft Policy Paper on Sexual and Gender-Based Crimes is one of the recommended policies that seek to address this weakness. This new policy looks at the approach that the ICC should take when prosecuting cases of sexual violence during armed conflict. It emphasizes the need to consider sexual molestation against men more seriously. As Salamey suggests, it is necessary to have a broader view when dealing with this issue beyond sodomy. In the Muthaura’s case, the prosecution explained that amputation or forceful circumcision of men constituted sexual assault because in many instances perpetrators played with the penis before chopping it off or mutilating it. It is the same act as playing with the genitals of a woman before inflicting pain through mutilation using different weapons. However, at that time the Chamber could not find a way of classifying such acts.
It went ahead and placed it under other crimes against humanity. The problem with such broad classification is that it does not clearly specify the crime hence the punishment will be based on the decision of the judges involved. Sexual crimes are defined in clear terms of the Rome statute and other international laws, and the punishment is also stipulated. However, when a crime that is similar to or worse than rape is given a lesser punishment because it is undefined, then Tristan explains that it will be viewed as an injustice to the victims. The proposed amendments and policies are meant to address such weaknesses and make the law strict when handling such crimes.
Conclusion
The International Criminal Court has a major role to play in combating sexual crimes in armed conflicts. As shown in this paper, one of the most common offences that are often omitted by criminals during armed conflicts is sexual violence. During that time, men and women who subdue their victims feel they have the liberty to do what they want with their victims. Sexual molestation gives these criminals a sense of victory and full control of the destiny of those that they have arrested. The paper shows that these criminal offences often take place under the direct command of the senior officers responsible for managing these concentration camps.
They view sexual attacks such as rape as a means of punishing their victims. The ICC must ensure that these individuals who bear the greatest responsibilities in these acts of crime against humanity are punished appropriately as way of warning others who may be tempted to commit similar crimes. A few successful cases such as that of Akayesu, Kunarac, and Jean-Pierre Bemba Gombo sent a strong message to the leaders all over the world that they will always be held responsible for their action. However, this study strongly suggests that it is necessary to reevaluate the current laws and powers of the ICC. There should be no contradictions when deciding cases of sexual crimes in armed conflicts. The court may also need to be empowered to ensure that it can successfully try cases brought before it.
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