On Monday March 21, 2016 the International Criminal Court (ICC) convicted former Congolese vice-president Jean-Pierre Bemba of war crimes and crimes against humanity committed during the 2002-2003 situation in the Central African Republic (CAR). Bemba was convicted by the ICC of two counts of crimes against humanity, for murder and rape, and three counts of war crimes, for murder, rape and pillaging. Most importantly though, this is the first trial at the ICC to focus on the use of sexual violence as a weapon of war, and the first time a defendant has been convicted for command responsibility for failing to take action to stop crimes he knows are being committed by his troops. More than 5000 victims participated in the hearings, the highest number in ICC history.
In 2002 Bemba was commander-in-chief of the Movement for the Liberation of Congo (MLC) when then president of the CAR, Ange-Felix Patasse, requested his assistance in putting down a coup waged by a group of soldiers loyal to former CAR president Kolingba. In coordination with Colonel Qaddafi of Lybia, Bemba sent 1,500 MLC troops to the CAR, who were accused of committing more than 1,000 rapes, in addition to widespread murder and pillaging.
Article 7 of the Rome Statute, which provides for the establishment and administration of the ICC, defines crimes against humanity as “acts when committed as a part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” Article 7(g) identifies “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity” as acts which may be invoked to constitute the actus reas of a crime against humanity. Article 8 defines war crimes as grave breaches of the Geneva Convention, including acts against persons or property, when committed as part of a plan or policy or as a part of a large-scale commission of such crimes. Under this definition, the over 1,000 rapes committed by the MLC troops, rises to the level required by the statute in a non-international conflict, and the actus reas of rape is expressly included in 8(2)(e)(vi). 8(2)(f) does limit the situations in which rape or sexual violence can be considered ample actus reas to convict of war crimes to those where there is a protracted armed conflict, hence why this application has never previously been appropriate. In this case, however, the widespread use of rape as a weapon was in evidence from the over 5,000 victim participants.
Commentators have been especially impressed with prosecutors use of Article 28(a) of the Rome statute which allows for a military commander to be held criminally responsible for crimes committed by forced under their control when the military commander knew or should have know that the forcer were committing those crimes, and when that commander failed to take all ‘necessary and reasonable measures within his or her power’ to prevent the commission or to submit the matter to authorities for investigation. Under this Article, the ICC tribunal convicted Bemba as a result of acts committed by his troops which he did not personally commit. This precedent has been heralded by a host of human rights organizations including Amnesty International who said that this verdict, and the principles it espouses, represent a “historic moment in the battle for justice for victims of violence in CAR and around the World.”
This verdict has assured justice for thousands of victims of sexual violence perpetrated as a weapon of war, and the ICC, a beleaguered institution, can now proudly claim to hold commanders responsible for the actions of their troops. However, this investigation began nearly ten years ago, the trial took four years, and the verdict came almost two years after close of arguments. The ICC handles cases which are complex and sensitive, often taking a long time to go through evidence and allow for victim participation. Critics of the court cite its long lag-times, exorbitant costs, and lack of international participation as reasons why it has been a failure at bringing perpetrators, especially those outside of Africa, to justice. Hopefully those critics concerns are at least partially dissuaded by the conviction of Jean-Pierre Bemba, because this verdict is more than just another conviction of a despised African war-lord. By convicting Bebma of rape as a result of command responsibility under Article 28, it is a huge step forward towards strengthening the enforcement of the principles that lay at the foundation of the ICC.
