Today the International Criminal Court reached an historic decision, finding former Congolese vice president Jean-Pierre Bemba guilty of murder, rape and pillaging during the 2002 – 2003 conflict in the Central African Republic. This decision is historic for two big reasons. First, it marks the the first time the ICC has found a commander guilty for actions committed by his troops. They did so under the theory of “command responsibility,” making a leader criminally liable for the crimes committed by his troops. Perhaps even more significantly, this verdict marks the first ICC conviction for rape and gender based violence. In other words, a commander was just held criminally liable for the rapes committed by his troops.
The unanimous decision by the Trial Chamber marks a significant step forward for the ICC in breaking new ground in international law. But it also highlights how important the diversity of jurists is in holding leaders responsible for their crimes. Three justices, all women, presided over the trial and rendered the precedent-setting verdict. That may have made a difference.
Proof that Gender Diversity Matters
Although this is the first conviction for rape at the ICC, it is not the first time international tribunals have tackled gender based violence. But understanding the importance of holding fighters and commanders responsible for gender based violence was a slow endeavor. Advocates for a stronger stance on gender based violence in international criminal law often point to the now-infamous exchange between Judge Navanethem Pillay and the prosecution during the trial of Jean-Paul Akayesu at the International Criminal Tribunal for Rwanda. A local politician during the genocide who oversaw the killing of Tutsis in his jurisdiction, the prosecution originally did not include any charges of sexual violence against Akayesu. But after several witnesses testified to the extensive use of rape and sexual violence by the accused and those he commanded, Judge Pillay – the only woman in the Trial Chamber on the case – pursued the testimony and questioned the prosecution’s choice to not include sexual violence as a crime against humanity. (Pillay would later serve as the UN High Commissioner for Human Rights).
Several women’s rights group went further, filing an amicus brief with the ICTR detailing the importance of including sexual violence in the court’s purview. The intervention worked; the Akayesu case is now known for not just the first time an international tribunal found a person guilty of genocide, but also the first time a tribunal found that rape and sexual violence constituted independent crimes against humanity. As Louise Chappell of the University of New South Wales noted, “Through its judgment [in Akayesu], women were recognized as individuals, as members of a group as well as having a reproductive role. For once, the woman of international law was seen as being multi-dimensional.”
That ruling, relatively early in the work of the ICTR, helps explain why the ICTR became the vanguard tribunal in establishing sexual violence and gender based crimes as serious breaches of international law worthy of prosecution at the highest levels of international criminal law. In 2014, even as the tribunal prepared to wrap up its final cases and close down, the ICTR released a best practices guide for the investigation and prosecution of sexual violence based on the experiences of the tribunal.
The 138 page manual represents a significant legacy of the ICTR, but also would likely not exist if it had not been for the presence of a female judge questioning why such crimes were being ignored, despite ample evidence of their existence.
Today, while watching the summary of the verdict against Bemba being read, it was impossible to ignore that the proceedings were overseen by three women judges: Judge Sylvia Steiner of Brazil, Judge Joyce Aluoch of Kenya and Judge Kuniko Ozaki of Japan. All three of the justices are well respected with distinguished legal careers in their own countries and on the international stage. But in reading the findings – where the court found that not only was rape committed against numerous women and men by the forces commanded by Bemba, but that these forms of sexual violence were part of the modus operandi of the Movement for the Liberation of the Congo (MLC) troops that he led – one can’t help but wonder if a panel of three men would have come to the same conclusion. International criminal law has made tremendous strides in the last 20 years in recognizing the real injury and trauma that sexual violence inflicts on its victims, but it is also fighting centuries of established norms where rape was seen as a regrettable, but acceptable, part of war.
From the beginning days of the ICTY and ICTR, it has been women who have led the campaign to change this. Again today, it was the women at the ICC who made history for the court by finding Bemba guilty of rape as both a war crime and crime against humanity for the actions of the troops he controlled. While many may see this as a victory for women, it is really a victory for everyone and one that demonstrates once again why inclusion on the international stage is important, not just for the ICC’s image but for the court to successfully do its core function: finding justice.