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Keywords: Rape, sexual violence during armed conflict
Deciding body: International Criminal Court
From October 2002 to March 2003, armed conflict was fought in the Central African Republic (CAR). During this time, former CAR Chief of Staff, François Bozizé, led rebel forces to overthrow CAR President, Ange-Félix Patassé. In order to stop the rebellion, former President Patassé asked for assistance from the Democratic Republic of Congo (DRC). In particular, he requested militia combatants of the Mouvement de Libération du Congo (MLC) be sent into the country.
On 21 December 2004, the CAR asked the International Criminal Court (ICC) to investigate the atrocities committed during the armed conflict.
In 2002, Jean-Pierre Bemba Gombo was President and Commander-in-Chief of the MLC when armed conflict broke out in the CAR. He was also the organisation’s figurehead and source of its funding, goals and aims. Upon receipt of Patassé’s request, Bemba immediately deployed three MLC battalions totalling around 1,500 men to counter Bozizé’s rebellion.
Within the first week of the MLC’s arrival, attacks against civilians began. P119 was living in the CAR when Banyamulengués (DRC mercenaries) arrived, telling her they were sent by “Papa Bemba”. Later, hiding behind plants, P119 saw Banyamulengués lined up in two columns “waiting for their turn” to “sleep with” the two girls while others raped them. Pushing a large stone onto one of the soldiers, P119 caused the other soldiers to run away. The two young girls – only 12 and 13 years old – were crying and bleeding.
Only a few weeks later, eight MLC combatants entered a community near P119’s home where P23 and his family lived. The soldiers attacked P23’s wife, P80, in front of their children. One of the soldiers told her that if she resisted, he would “sleep with her 50 times without stopping”. Then, at gunpoint, P80 was raped by three soldiers. P23’s granddaughter (aged between 10 and 13 years old)was dragged outside, where soldiers hit her legs with batons before they took turns raping her. One of P23’s daughters was raped by four soldiers in front of her husband, children, brother and mother – the fifth soldier refused to rape her because she was bleeding. Two more of his teenage daughters were raped by other soldiers. With family members and neighbours looking on, P23 was also attacked and raped by three of the soldiers.
During the conflict, the CAR operation remained within the MLC hierarchy. Bemba had maintained regular and direct contact with commanders in the field. He had received numerous detailed operations and intelligence reports. In the DRC, the MLC (controlled by Bemba) provided logistical support and equipment to soldiers in the CAR. Bemba also retained primary disciplinary authority over the MLC troops in the CAR. Despite these powers, Bemba took no concrete action to prevent and repress the rape, pillaging and murder perpetrated by MLC soldiers.
On 24 May 2008, Bemba was arrested in Belgium. During his trial, 5,229 survivors were authorised to participate in the proceedings. By January 2010, the ICC had received an abundance of evidence on the widespread act of rape, pillaging and murder perpetrated by MLC soldiers – including testimony from P119 and P23.
What was the decision?
“…the determination of whether a person has effective authority and control rests on that person’s material power to prevent or repress the commission of crimes or to submit the matter to a competent authority. This need not be an exclusive power and multiple superiors can be held concurrently responsible for their subordinates’ actions.” (para. 698)
Through its analysis, the ICC found Bemba guilty on five counts. In particular, with regard to his crimes of gender-based violence, the ICC found him responsible for:
- Crime against humanity of rape
- War crime of rape
The ICC determined that the rapes committed by MLC soldiers amounted to crimes against humanity and war crimes – and were therefore within the jurisdiction of the ICC (see para. 649, 669, 694). Accepting this determination, the ICC then moved to decide if Bemba had individual criminal responsibility for those violations. To do so, the ICC would have to consider whether Bemba had “command responsibility” for the crimes committed by the MLC. This required the ICC to determine whether:
- Bemba effectively acted as a military commander and had effective authority and control over the MLC troops in the CAR
- Bemba knew that MLC troops were committing or about to commit the crimes against humanity of murder and rape and the war crimes of murder, rape, and pillaging in the CAR
- Bemba failed to take all necessary and reasonable measures within his power to prevent or repress the commission of the crimes by MLC troops in the CAR
- Bemba’s failure to fulfil his duties to prevent crimes increased the risk of their commission by the MLC troops in the CAR
In the first instance, the ICC quickly noted that Bemba was President of the MLC and Commander-in Chief of the ALC during the conflict. Acting in those capacities, Bemba possessed a broad range of powers that indicated that he acted as a military commander with effective authority and control over the MLC troops in the CAR.
He also had direct knowledge that MLC soldiers were committing widespread rape – as evidenced by the speech he gave condemning the “brutalising” of the civilian population in P119 and P23’s area. He received case files with detailed information on acts of rape attributable to the MLC and received several reports allegations of rape, murder and pillaging by MLC soldiers. At one point he had launched an inquiry into the misconduct of soldiers, although the results of the inquiry were minimal. These actions were evidence of Bemba’s knowledge that rape was widely perpetrated by soldiers against civilian populations.
There were no concrete measures enacted to address the information Bemba received. His actions were limited to general, public warnings not to mistreat civilians. In fact, the ICC outlined actions Bemba could have undertaken to prevent and eliminate the violations taking place, including having (para. 729):
- Ensured the MLC troops in the CAR were properly trained in the rules of international humanitarian law, and adequately supervised during the 2002-2003 CAR Operation
- Initiated genuine and full investigations into the commission of crimes, and properly tried and punished any soldiers alleged of having committed crimes
- Issued further and clear orders to the commanders of the troops in the CAR to prevent the commission of crimes
- Altered the deployment of the troops, for example, to minimise contact with civilian populations
- Removed, replaced, or dismissed officers and soldiers found to have committed or condoned any crimes in the CAR
- Shared relevant information with the CAR authorities or others and supported them in any efforts to investigate criminal allegations
Had Bemba undertaken any of these measures, the risks faced by civilian populations would likely have been prevented, or at least wouldn’t have been committed in the circumstances which they were.
For these reasons, the ICC determined that Bemba did have command responsibility for the war crimes and crimes against humanity of rape – which were “beyond a reasonable doubt” the result of his failure to exercise control properly.
Learning from other institutions
Throughout the text of the case document, the ICC’s decisions were supported by what other institutions and authorities had said about rape, sexual violence and criminal responsibility. This reinforces the legal value of international standards on gender equality, and helps build a unified global commitment to tackling VAW. Some of the references to these institutions and authorities included (numbers correspond to paragraphs within the case document):
- International Criminal Tribunal for the Former Yugoslavia: 101, 128, 130
- Kunarac, Kovač and Vuković Case (the ‘Foca Trial’): 143-4, 696
- Jean-Paul Akayesu Case: 103, 132
- Brima, Kamara and Kanu Case (the ‘AFRC Case’): 120
The Bemba case sets an important precedent for prosecuting crimes of sexual violence at the ICC. Only the fourth trial to reach the judgment stage at the ICC, Bemba’s conviction for war crimes and the crime against humanity of rape is a step towards ending impunity for sexual violence committed during conflict. Prior to this judgment, Ngudjolo Chui was acquitted of all criminal charges, Germain Katanga was acquitted for all sexual violence charges and Thomas Lubanga Dyilo was not charged with any crimes of sexual violence.
The Bemba case was also the first time the ICC considered the individual criminal responsibility of the accused under Article 28 of the Rome Statute – codifying the responsibility of military commanders and persons effectively acting as military commanders (“command responsibility”). By outlining specific actions Bemba could have been reasonably expected to take, the ICC expanded the legal expectations for all military commanders in preventing and eliminating sexual violence in conflict. The decision alsosends a message that those who fail to meet these expectations can be held accountable.