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On 21 March 2016, Trial Chamber III of the International Criminal Court (ICC) convicted Jean-Pierre Bemba Gombo, the former vice-president of the Democratic Republic of Congo (DRC), of war crimes and crimes against humanity, including rape. The basis of his conviction was the fact that as a commander, he had failed to stop his troops – the Mouvement de libération du Congo (MLC) – from committing murder, rape and pillage in the Central African Republic (CAR). Exactly three months later, on 21 June 2016, the Trial Chamber sentenced Bemba to a prison term of 18 years. Both the judgement and the sentence have been widely praised. The UN Secretary General, Ban Ki-moon, described the conviction as ‘a significant step towards bringing justice to the victims of these horrendous crimes in the Central African Republic’. Immediately reacting to the sentence, Karen Naimer from Physicians for Human Rights argued that ‘The punishment meted out today can’t turn back the clock but it can bring a measure of closure to those victims who’ve waited patiently for more than a dozen years for this day to come’. There is no doubt that this is a highly significant case. Bemba is not only the first ICC defendant to be convicted on the principle of command responsibility, but he is also the first to be found guilty of rape. Nevertheless, it is problematic to assume that the verdict in and of itself provides victims and survivors with ‘justice’.

Historically, rape and sexual violence have been viewed as routine by-products of war, acts through which soldiers can punish and humiliate their enemies while also staking claim to part of the ‘war booty’. The trials of international judicial bodies such as the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL) have contributed to creating a new normative framework of ‘no impunity’ and a complex legal architecture in which this fight against impunity is being fought. For many survivors of rape and sexual violence, legal justice is extremely important. These crimes are intrinsically disempowering and demeaning, stripping individuals of their sense of worth and self-respect. Court judgements offer an official recognition and validation of survivors’ suffering, an acknowledgement of their victimhood. Legal justice, however, is only one part of a complex justice mosaic. Hence, it is crucial to situate and understand cases like Bemba within this context. Fundamentally, rape and sexual violence give rise to long-term needs, while courts are concerned with the more immediate issue of whether a particular defendant is guilty. Between the two, there is a vast chasm, and it is essential to continue exploring and developing new ways of responding to the long-term effects of rape and sexual violence.

Viewed in this way, the Bemba judgement is significant, not because it delivers justice to survivors of rape and sexual violence in the CAR, but because it offers the basis for a more needs-based approach to dealing with the legacy of these crimes. Firstly, in both the Trial Judgement and the Sentencing Judgement, the judges explicitly discussed some of the long-term effects of the rapes that Bemba’s forces committed in the CAR. The Trial Chamber commented not only on the multifarious psychological and physical effects of these crimes – from post-traumatic stress disorder (PRSD) and anxiety to gynaecological problems and abdominal pains – but also on their social impact and legacy. The judges noted, for example, that ‘When their rapes were known within their communities, victims were ostracised, socially rejected, and stigmatised’. Implicitly, therefore, the Trial Chamber acknowledged the limitations of legal justice. Will a legal judgement alone alter social attitudes and prejudices towards rape survivors?

Secondly, a long-standing issue within international jurisprudence on rape relates to the legal definition of the crime. Does it require force? Does is require non-consent? Is it even appropriate to speak about consent in situations of war and armed conflict? In the ICTY’s leading case on rape, namely Kunarac, Vuković and Kovač, the Trial Chamber adopted a consent-based definition – but with a major caveat. It stressed that consent, when given, must be ‘given voluntarily, as a result of the victim’s free will, assessed in the context of the surrounding circumstances’. What that case tells us, therefore, is that in certain situations, consent becomes a reductant concept because the circumstances de facto mitigate against an individual freely giving consent. The Bemba judgement goes one step further. It uses the definition of rape defined in the ICC’s Elements of Crimes, and this document scarcely mentions consent. Rather, Articles 7 (1) (g)-1 and 8 (2) (b) (xxii)-1 – which deal with rape as a crime against humanity and as a war crime respectively – require that the physical ‘invasion’ which results in penetration ‘was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent’. Consent, in other words, is only relevant in terms of who cannot give consent. It can be argued that consent still underlies the first three conditions set out in the aforementioned Articles. The key point, however, is that because the Elements of Crimes do not require the Court – as the Bemba judgement demonstrates – to explicitly address the issue of consent, this shifts the focus away from what an individual victim did or did not do and towards a far greater emphasis on what s/he experienced. This foregrounding of the experiential dimensions of rape, in turn, is crucial for drawing attention to some of the long-term effects of this crime.

Thirdly, the Bemba Sentencing Judgement addresses the issue of peacebuilding. Bemba’s Defence team attempted to present him as a man who promoted peace and reconciliation in the DRC, and particularly in the provinces of Ituri and Équateur. The Trial Chamber emphasized that even if it were to accept that Bemba had engaged in peacebuilding in the DRC, he had not extended his efforts to the CAR. In short, it opined that ‘…Mr Bemba’s political goals and motivations created the circumstances in the CAR in which the crimes against humanity and war crimes upon which he was convicted were committed’. The discussion regarding peacebuilding is an interesting one because the process of rebuilding peace in war-torn societies cannot be solely top down, led by elites and international actors. Victims of crimes themselves have a vital role to play in the process; and in this ‘bottom-up’ approach to peacebuilding, survivors of rape and sexual violence are also key actors. They cannot remain peripheral to something that will affect their lives and futures.  A group of survivors in Colombia, for example, were involved in the Havana peace talks that led to the recent signing of a historic ceasefire agreement between the President Santos and the Farc.  Yet, if survivors are to engage in peacebuilding, it is essential that their needs are met. Survivors who are struggling to put food on the table, or are facing daily hostility and stigmatization from their communities, are unlikely to be in a position to think about the future.

The significance of the Bemba trial judgement and sentencing judgement, thus, are not that they dispense justice to survivors. Rather, they indirectly highlight a crucial dimension of justice for survivors of rape and sexual violence, namely to have their elemental needs – and in particular their long-term needs – met. Unlike tribunals such as the ICTY and ICTR, the ICC has the power to award reparations, and this will be a future step in the Bemba case once the appeals process has been completed. Notwithstanding the importance of reparations, it should not be assumed that they are sufficient to address the complex and multiple needs of survivors. Reparations are one part of transitional justice, but a major challenge is to develop and operationalize the ‘holistic transitional justice’ that authors such has Alexander Boraine have called for. Understanding the long-term needs of survivors is a crucial first step.

Written by Janine Natalya Clark, School of Law,  University of Birmingham

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 Dr Janine Natalya Clark is a Reader in Gender, International Criminal Law and Transitional Justice in the School of Law at the University of Birmingham, UK. Her research interests include sexual violence in conflict, transitional justice, genocide and ethnic conflict, and her work focuses heavily on the former Yugoslavia. She is currently writing her third book, which is exploring the long-term effects of the rapes and sexual violence comitted during the 1992-1995 Bosnian war.  

For more information email Janine  – J.N.Clark@bham.ac.uk

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