II. The Early Prosecutions of SGBV Crimes: The Era of Impunity

To grasp the impact that Jean-Pierre Bemba Gombo’s acquittal by the International Criminal Court (ICC) will have on the future prosecution of sex and gender-based violence crimes (SGBV crimes), it is first important to understand how Prosecutor v. Jean-Pierre Bemba Gombo1 came to be a flagship case for the international prosecution of such crimes. To that end, an analysis of the prosecutorial history of such crimes at international tribunals is illuminative.

Prohibitions on the commission of SGBV crimes during conflict have existed in military codes since the fourteenth and fifteenth centuries.2 For example, in 1385, Richard II outlawed the rape of women during conflict in his Ordinances of War , and Henry V followed suit, declaring rape during conflict a capital offense.3 Indeed, as early as 1863—while still in its infancy—the United States outlawed rape during times of conflict, under punishment of death.4 Despite these early and frequent prohibitions, however, SGBV crimes have not typically been prosecuted in international tribunals.5 This allowed perpetrators to avoid punishment, and to operate with impunity in committing (or permitting the commission of) SGBV crimes during conflict.6

The most dramatic examples of such prosecutorial failures are the post-World War II prosecutions of Nazi officers during the Nuremberg Tribunal (IMT), and the prosecution of Japanese commanders during the International Military Tribunal for the Far East (IMTFE),7 in response to the thousands of women who became victims of SGBV crimes During World War II.

One of the most horrific instances is known as the “Nanking Massacre” or the “Rape of Nanking.”8 In November of 1937, following a Japanese victory against the Chinese in Shanghai, the Japanese military began to march toward Nanking.9 Concerned that he would lose his most highly-trained troops, Chiang Kai-shek ordered the withdrawal of all Chinese troops, officially abandoning the city on December 1, 1937.10 On December 13, Japanese troops arrived in Nanking under the command of Iwane Matsui, and committed one of the worst war-time SGBV atrocities on record.11 Although estimates vary, Japanese troops raped and murdered between twenty-thousand and eighty-thousand women over the course of several weeks.12

Throughout World War II, SGBV crimes were pervasive, with hundreds of thousands of women forced into brothels or concentration camps, to serve as sex slaves.13 Despite this, neither the statutory laws of the IMT (Nuremberg tribunal), nor the IMTFE, listed rape as a war crime or a crime against humanity.14 As a result, the trials which took place under these tribunals largely ignored SGBV crimes, despite records containing evidence of rape, forced nudity, sexual mutilation, and forced abortion.15 Indeed, not a single rape charge was brought during the Nuremberg tribunals.16

The IMTFE did not fare any better. Although Matsui was convicted for violations of law at Nanking, rape and other SGBV crimes were never dealt with expressly.17 Instead, such crimes were subsumed under charges for other crimes, which were presumably viewed as more severe.18 Even in the allied tribunals of minor war criminals, held under Control Council Law Number Ten,19 which expressly included rape as a chargeable crime, rape and other SGBV crimes only received minimal treatment.20

While there are many issues which make the prosecution of SGBV crimes particularly problematic, two factors in particular likely played a role in the failure of these early prosecutions. Firstly, it has been posited that for hundreds of years, rape and other SGBV crimes were viewed largely as an inevitable and expected by-product of conflict.21 Indeed, others have argued that not only were such crimes viewed as an inevitable by-product of armed conflict, but in fact rape and other SGBV crimes were viewed as a spoil of war; effectively a reward for the soldiers.22 Thus, rape has been viewed as permissible during times of conflict, even by societies that, outside of such conflicts, would view rape as reprehensible and prohibited.23

This view of rape and SGBV crimes is rooted in the historical view of women as the property of men, making rape and other SGBV offenses property crimes, or crimes against dignity, rather than the crimes of violence that they are.24 This perception of SGBV crimes as an expected by-product of war likely contributed to neither the Nuremberg tribunal, nor the IMTFE specifically listing rape as a war crime, or a crime against humanity.25

Secondly is the issue of “fair labelling.”26 Fair labelling is the theory that each crime should be individually labelled and described, in order to represent the varying nature and magnitude of that particular crime.27 The goal of fair labeling, is to distinguish between crimes which may fall under similar offense groups, but which vary in terms of their wrong-doing, and by extension, the perpetrator’s culpability.28 This is crucial for the prosecutor, the offender, the victim, and the public.29

For the prosecutor, fair labelling ensures that the elements of an offense are outlined so as to permit the gathering of proper evidence, which in turn allows the prosecutor to obtain an indictment and (hopefully) a conviction.30 For this reason, fair labelling requires that a crime’s definition be strictly constructed, and not be extended to other crimes by analogy.31 For the offender, fair labelling provides sufficient notice of the prohibited conduct with which they are charged, and in turn the penalties that may be imposed against them. Additionally, it ensures consistent verdicts against defendants by removing judicial discretion and ensuring only those who have committed a specific offense with a specific mens rea are convicted.32

Fair labelling also serves the victim, the offender, and the public, by prescribing an appropriate level of stigma to an offense (so one guilty of forced nudity is not convicted as a rapist, and vice versa).33 Finally, for the victim, it is crucial that a crime be properly and fairly labelled so as to adequately reflect the harm and pain they suffered.34

The complete failure to define or include SGBV crimes in the statutes of the IMT and the IMTFE constituted a serious violation of fair labelling, as it provided no mechanism whatsoever for victims to see their pain properly addressed, or their perpetrator properly stigmatized for their actions. Although some have argued that rape could have been prosecuted under the IMT and IMTFE statutes as “inhuman acts” or “ill treatment,” this is a null argument.35 Subsuming rape and other SGBV crimes under such headings violates fair labelling by failing to strictly construct a definition of each crime, instead extending definitions to multiple crimes by analogy, which is prohibited. Such extension by analogy fails to put the defendant on notice of the crimes or punishment they face, fails to convey to the world the proper stigma, and fails to adequately express the victim’s pain and suffering, thus serving none of the necessary interests.36

Whether it was the societal expectation that rape was a normal part of war, or the tribunals’ failure to adequately define SGBV crimes as separate offenses, the impact was clear. As one survivor of a Japanese sex-slavery compound stated:

Perhaps the answer is that these violations were carried out against women. Women are always victims of war. We all heard it being said: they are only women, this is what happens to women during war … Rape in war is a power game. It is used as a reward for the soldiers.37

Thus, the failure to effectively pursue and prosecute SGBV crimes sent a clear message to both the perpetrators and the victims of SGBV crimes that such crimes were of lesser concern, and that they could be committed with relative impunity.38 This era of impunity lasted for decades.

III. Prosecutions at the ICTY and ICTR: The Era of Honor

The outbreak of violence in Rwanda and Yugoslavia in the mid 1990s provided an opportunity for the international legal community to redeem its prior failures, and to effectively pursue and prosecute SGBV crimes. The events in Yugoslavia had once again brought the issue of SGBV crimes to the international forefront, due largely to the changing nature of how these crimes were implemented during the conflicts.39 Specifically, SGBV crimes were being used in a systematic fashion, as part of a broader policy to destroy particular national or ethnic groups.40 This marked a dramatic shift from prior conflicts, where such crimes lacked the systematic and organized implementation seen in Yugoslavia.41 This shift caused the UN General Assembly to adopt a resolution noting that the:

systematic practice of rape was used as a weapon of war and an instrument of ethnic cleansing against women and children in the areas of armed conflicts in former Yugoslavia, and especially against the Bosniak women and children in BiH.42

Although reports vary, it is estimated that between twenty-thousand and seventy-thousand women were systematically raped or subjected to other SGBV crimes during the Yugoslav dissolution war.43 Such dramatic numbers, and the apparent targeted use of rape drew media attention, as well as the attention of academics and scholars, who began characterizing the war as a “war against women,” and rape as a “weapon of war.”44

During roughly the same time period, horrendous SGBV crimes were also being perpetrated in Rwanda, again as a systematic, targeted genocide of an ethnic group (the Tutsi).45 Reports and testimony from peace-keeping forces present in Rwanda during the conflict elucidated the horrors committed, including the gang-rape and murder of girls as young as six, as well as sexual mutilation, all aimed at exterminating the Tutsis.46

Following extensive media coverage and global interest from feminist and human rights scholars, the UN was spurred to action.47 In 1992 and 1994, respectively, the UN Security Council passed resolutions 780 and 935, establishing independent commissions to investigate, examine, and record serious crimes that were committed in both Yugoslavia and Rawanda.48 Based on reports issued by each of the independent commissions, the UN established the International Criminal Tribunal for the former Yugoslavia (ICTY), and the International Criminal Tribunal for Rwanda (ICTR), in order to prosecute the atrocities which had taken place.49

These developments brought rape out of the shadows and to the forefront of international discussion, highlighting the use of rape as a “tool of war,” rather than an expected collateral consequence.50 Fearing a repeat of the “Era of Silence” that followed World War II, feminist interest groups exerted their influence during the creation of the governing statutes for the ICTY & ICTR to ensure sufficient focus on pursuing SGBV crimes.51

These efforts saw some great success: although rape was not listed as a stand-alone breach of the laws of war,52 both of the statutes governing the ICTY and the ICTR listed rape as an independent crime against humanity.53 This was the first time that rape had been listed as a crime against humanity in international law.54 This allowed the ICTY to convict Anto Furundžija and several others for torture, as co-perpetrators of rapes.55 Perhaps an even greater success, the conviction of individuals in Prosecutor v. Kunarac marked the first time that a war crimes indictment was comprised entirely of sexual violence charges; a landmark for the international prosecution of SGBV crimes.56

In the ICTR, the Statute went a step further, expanding the tribunal’s authority in Article four of the ICTR Statute, stating that rape may be prosecuted as a breach of Article three of the Geneva Convention.57 This ensured that the ICTR ’s jurisdiction, as opposed to that of the ICTY, explicitly included the crime of rape.58 It was the ICTR that would later oversee the case of Prosecutor v. Akayesu, which served to expand the capability of international tribunals to prosecute SGBV crimes during war.59 Although this case marked the first criminal conviction for genocide, the court also found Akayesu guilty of rape as a crime against humanity.60 Perhaps more important than the convictions themselves, however, was the means by which the convictions had come about.

Akayesu’s original indictment contained twelve charges, none of which were SGBV crimes.61 At trial, however, witness testimony became a focus under the original indictment.62 Such testimony included a mother who testified about the gang rape of her six-year-old daughter, and another woman who had not only been raped herself but had been witness to other rapes committed by and under Akayesu’s command.63 For the first time in history, victim testimony directly spurred judicial action by the tribunal, thanks in large part to Judge Pillay, the only female ICTR judge, who also happened to be assigned to the panel hearing this case.64 Following witness testimony, the judges ordered an investigation as to the crimes testified to, finding that these events were not isolated.65 Furthermore, the court held that if the prosecution found that such crimes had, in fact, been committed and there was fault on the part of the defendant, the indictment should be amended to include such offenses.66 The indictment was amended in 1997, to include charges of rape as genocide, a crime against humanity, and a violation of Article three of the Geneva Convention.67

The ICTR was also progressive in defining sexual abuse to include “forced nudity,” which was a drastic step forward for SGBV prosecution as it recognized that such crimes cause significant psychological harm to victims even in the absence of physical harm; a drastic shift from prior criminal tribunals.68 Akayesu was convicted of sexual abuse as genocide, as well as rape and forced nakedness as crimes against humanity, marking the first time that rape had been considered genocide in international law, and marking the first conviction for sexual crimes causing psychological harm to the victims, not just physical harm.69

Finally, the tribunals served an important purpose in returning the doctrine of command responsibility to the international prosecution of SGBV crimes.70 Indeed, in Prosecutor v. Delalić, individuals were convicted for crimes committed by subordinates, a dramatic step forward for the prosecution of SGBV crimes.71 However, despite the fact that these tribunals achieved some important milestones for the international prosecution of SGBV crimes, many saw these tribunals as further failures by the international community to pursue and prosecute SGBV offenders.72

Indeed, when viewed as a whole, it seems that the conviction of perpetrators for SGBV crimes was the exception, rather than the rule. The ICTY and ICTR convicted only a few perpetrators of SGBV crimes, despite the factual records of these conflicts being replete with evidence of such atrocities on a massive scale.73 In many cases, the prosecutor was forced to remove SGBV crime charges from indictments, and in other cases they were never included in the first instance.74 In the end, ninety percent of the judgments put forth in the ICTR failed to include rape or other SGBV crimes, and where such crimes were included, the number of acquittals was double that of convictions for such crimes.75

Where the IMT and IMTFE had failed largely due to a lack of desire to pursue SGBV crimes and a general view of them as lesser offenses, the ICTY and ICTR failed despite their renewed focus on pursuing such crimes. Understanding why these prosecutions failed sheds light on the complex issues surrounding SGBV prosecutions and emphasizes the impact that the acquittal of Jean-Pierre Bemba Gombo is likely to have on future prosecutions of such crimes.

A primary difficulty in prosecuting SGBV crimes is the necessity of victim and witness testimony and participation. The common law system requires that all trial testimony be heard viva voce, requiring witnesses be presented in court, under oath, and be subject to cross examination.76 Although the civil law creates additional flexibility in terms of what is admissible, the degree to which such flexibility is allowed varies, dependent on the discretion of judges who, at the international level often have not served in such a professional capacity, and may thus believe such participation is required.77

Such a belief may, in fact, be warranted, particularly given the fact that international criminal tribunals often seek to prosecute high-level officials, as opposed to the lower-level operatives who actually perpetrate the crimes. Prosecuting high-level officials often requires proving a theory of vicarious liability, such as command responsibility. This in turn requires proving that the commander knew, or should have known about the acts being committed, and that the commander failed to take the necessary measures to prevent those acts from occurring, or to punish perpetrators for acts already committed. Particularly in developing and conflict-torn areas, documentary evidence that a commander ordered crimes to be committed, or cell phone evidence linking the commander to the act is very difficult to acquire, if such evidence exists at all. These hurdles often necessitate the involvement of witness and victim testimony in order to connect the commander to his troops and their commission of such crimes.78 Indeed, even where statistical evidence reduces the necessity of victim participation, accurate reporting by victims and participation by non-victim witnesses is critical.79 Therefore, victim participation in SGBV prosecutions is often required.80

Although requiring participation of victims is not unique to the prosecution of SGBV crimes, the stigmatization of victims and other disincentives to victim participation in SGBV prosecutions are unique, posing additional barriers to effective SGBV prosecution. In fact, the failings of the ICTY and ICTR may have been due in large part to such disincentives.81 Rape and other SGBV crimes carry with them not only the physical trauma of the act itself, but also additional repercussions for victims, which remain long after the act has been completed.82 Indeed, it is often these collateral effects which make rape and other SGBV crimes a desirable weapon for those seeking to completely destroy an ethnic group or population, or to inflict longer lasting harm than one could inflict through other crimes.83 As one commenter stated, “[m]assacres kill the body. Rape kills the soul.”84

Many communities today still view women—their bodies and sexuality included—as being the property of men, whether it be their fathers, husbands, or others.85 Therefore, if a woman loses her virginity, or is declared promiscuous, it is viewed as contaminating her entire family, essentially a crime against both the family’s and the victim’s honor.86 In such societies, the victims of SGBV crimes often find themselves stigmatized and isolated from their community, rejected by their spouses and families, and considered unable to marry.87 Additionally, such victims may have become forcibly impregnated (in which case their children are often also shunned by the community), infected with HIV / AIDS (leading to further stigmatization), or even face the specter of criminal prosecution for alleged infidelity.88

All of these factors pose strong disincentives to even report the crime, as much of the stigma is likely to fall on the victim themselves, rather than the perpetrator. Additionally, where such crimes are reported, testifying at trial about an experience involving intimate areas of their body can serve to re-traumatize the victim, making testimony difficult for many.89 Finally, even if there is a victim who may otherwise be willing to testify, the logistics of transporting the victim to the tribunal, conspicuously removing them from their community for extended periods of time, and housing the victims throughout prolonged prosecutions impose additional disincentives to victim participation.90

With all of the disincentives to victim participation, for prosecution of SGBV crimes to be effective, it is critical that there be protection for victims and witnesses willing to testify, and a clear and defined prosecutorial strategy that includes sensitivity to victims in gathering evidence, questioning, and defining such crimes.91 The ICTY and ICTR, however, largely failed in these respects. As a foundational issue, it appears there was substantial gender bias within the office of the prosecutor, according to Richard Goldstone, who was appointed Chief Prosecutor at the ICTR and ICTY.92 This bias manifested itself in a failure to pursue SGBV crimes effectively during the first years of the tribunals, the Deputy Prosecutor believing Rwandan women would not be willing to come forward, and lacking the political will to pursue such crimes.93

One of the best examples of such a failure to pursue these crimes was the case of Prosecutor v. Akayesu, discussed above. Despite a record and testimony containing strong evidence of SGBV crimes, it required judicial intervention to see such crimes pursued by the Prosecutor.94 Because they failed to initially pursue such crimes, the credibility of the tribunals to deliver effective and timely justice was badly discredited, sending a message that these crimes were still viewed as lesser and unimportant.95

These initial failings were exacerbated by inadequate and ineffective prosecutorial strategies, leading to a failure to adequately protect victims.96 Gender bias led to a lack of female investigators trained in such crimes, which further disincentivized victim and witness participation, and provocative questions were often posed to victims by untrained investigators before trial, or by defense counsel at the trials themselves.97

For instance, in 2003 a defense attorney paid an unannounced visit to a secret location housing witnesses; to make the matter even worse, the attorney was a member of the same community as many of the witnesses, leading to deep-seated fear amongst the victims that their identities would be exposed.98 In another instance, during the Foča trial at the ICTY, a witness testified that she had not been selected for rape one night by the prison guards, and in response the defense attorney asked her if she was jealous of the women that had been chosen for rape.99 The case of Prosecutor v. Furundžija, also discussed above, provides yet another example: a victim suffering from PTSD due to her attack testified in the case, however the court failed to adequately protect her privacy.100 Following defense opposition, the court removed the victim’s immunity, allowing her private medical and psychological records to be released and used by the defense at trial.101 All of these failings served to discredit the tribunals, as well as to disincentivize witness participation, and indeed witnesses began to withdraw their participation, leading to indictments being withdrawn and SGBV charges dismissed for lack of evidence.102

An additional problem facing these tribunals was a failure to adequately and clearly define rape and other SGBV crimes, again violating the doctrine of fair labeling, leading to inconsistent verdicts and evidentiary requirements. This created uncertainty for prosecutors, who often failed to meet their burden of proof, or the definition’s elements focused questioning on the victim’s (rather than the perpetrator’s) conduct, thus re-victimizing them.103 A look at three cases in particular is illustrative: the cases to be examined are Akayesu, Furundžija, and Kunarac.

In the Akayesu case, the ICTR Trial Chamber I defined rape as “a physical invasion of a sexual nature, committed on a person under circumstances which are coercive,” while also defining sexual violence to include rape as “any act of [a] sexual nature which is committed on a person under circumstances which are coercive.”104 This definition violated the doctrine of fair labelling by subsuming rape under generalized “sexual violence,” a category containing numerous, undifferentiated crimes. Thus, the tribunal failed to distinguish the various harms that the crimes cause.105

Later that same year, the ICTY Trial Chamber heard Prosecutor v. Furundžija, and defined rape as “a forcible act of the penetration of the vagina, the anus or mouth by the penis, or of the vagina or anus by other object.”106 In stark contrast to the definition from the ICTR, this definition specifically delineated assaults resulting in actual penetration of the victim from those sexual assaults falling short of penetration; additionally, it limits the body parts that can be considered part of a rape offense.107 Thus one could be guilty of rape in the ICTR, while the same conduct would result in a rape acquittal at the ICTY.

Finally, three years later, in Prosecutor v. Kunarac, Trial Chamber I of the ICTY overlooked the definition previously used by Trial Chamber II of the same tribunal, and provided yet another definition in the judgment against Kunarac, Kovač, and Kuković.108 Trial Chamber I of the ICTY defined rape as:

the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator: or (b) of the mouth of the victim by the penis of the perpetrator; where such sexual penetration occurs without the consent of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victim’s free will, assessed in the context of the surrounding circumstances. The mens rea is the intention to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim.109

Such a definition, focusing on the consent of the victim, had long been decried as misinformed because it resulted in a focus on the victim and the victim’s conduct at trial, rather than the conduct of the perpetrator, thus re-traumatizing victims.110 Finally, some have alleged that including rape and other SGBV crimes in “crimes against humanity” but not “war crimes,” as the tribunals did, also disserved the victims and prosecutors, as it requires proving that the rapes occurred as part of a broad, systemic attack on a civilian population, which may not be the case in many instances of war-time rape.111 These varied definitions created confusion among prosecutors, discredited the tribunals in the eyes of victims, and led to inconsistent verdicts, further delegitimizing the tribunals’ judgments.112 Thus, although the ICTR and ICTY had taken dramatic steps forward in bringing SGBV crimes out of the shadows, they had in many ways failed to bring real justice to victims, perpetrators, or the general public.

IV. The ICC: A Renewed Hope for the Effective Prosecution of SGBV Crimes

Due to both the achievements and failings of the ICTY and ICTR, it was amidst an atmosphere of mixed optimism and disappointment that the Rome Statute was adopted in 1998, and subsequently entered into force in July 2002.113 The Rome Statute created the ICC in order to prosecute those responsible for “unimaginable atrocities that deeply shock the conscience of humanity.”114 Many involved with gender issues, however, believed when the ICC was created that it was meant to not only provide justice to victims of SGBV crimes, but to challenge gender relations and empower women as well.115 By clearly defining and pursuing the SGBV crimes which had historically been overlooked and swept under the rug, providing crucial empowerment to victims, stigmatization of perpetrators, and acknowledging the seriousness of SGBV crimes, as well as their historical record of being misunderstood, many hoped that the ICC would send a new message to victims and perpetrators.116

Indeed, at first blush, it appeared this might be the case, as the Rome Statute and the establishment of the ICC appeared to incorporate some invaluable lessons from the experiences during the “Era of Silence” as well as the failures of the ICTY and ICTR.117 The Rome Statute was the first treaty of an international criminal court to explicitly recognize a wide range of gender-based crimes under the court’s jurisdiction, including “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity.”118 Furthermore, rape and other SGBV crimes were listed both as crimes against humanity and war crimes.119 These steps marked a dramatic departure from the past, where if rape was included at all, it was included only as a crime against humanity rather than a war crime, making it harder to prove out.

Furthermore, where the ICTY and ICTR had created great confusion over the definition of rape, the parties to the Rome Statute created the “Elements of Crimes” in 2002.120 This statute set out the specific elements for each SGBV crime listed in the statute, in order to provide the court, the prosecutor, and the defense in their investigation and trial strategies, shoring up the possibility of inconsistent verdicts (and by extension inconsistent justice) for the victims of SGBV crimes that had been experienced at both the ICTY and ICTR.121

Additionally, there seemed to be acknowledgement of the failings of previous tribunals, as in the Semanza case, where theories of liability and the mens rea that attached had permitted perpetrators escape prosecution. This was evidenced by the creation of Article 28 of the Rome Statute, which reinvigorated the theory of command responsibility to hold perpetrators accountable where Article 25 failed.122 Such a fail-safe theory of liability was seen as crucial to securing convictions for SGBV crimes prosecuted at the International Criminal Court.123

The ICC also provided a clear mandate to the office of the prosecutor to put an end to impunity for the most serious crimes, including gender crimes specifically , committed as war crimes, crimes against humanity, or genocide.124 Article 54(1)(b) of the Rome Statute sought to create coherent prosecution strategy for SGBV crimes, again departing from the errors at the ICTY and the ICTR which resulted in improper investigation, and eventually to re-traumatization of victims. Specifically, Article 54(1)(b) stated that to ensure effective investigation and prosecution of crimes under the Rome Statute, the Prosecutor shall “take into account the nature of the crime, in particular where it involves sexual violence, gender violence, or violence against children.”125 Seeking to further protect victims, the Statute provided specific considerations for the protection of SGBV victims in Article 68(1).126 Article 42(9) further required that the Prosecutor appoint advisers who had expertise in SGBV crimes, which led to the creation of the Gender and Children Unit, comprised of experts in the field of SGBV crimes and crimes against children.127 Operation manuals were created to instruct prosecutors and investigators on how to proceed with a SGBV crime investigation, and specifically how to treat victims and witnesses in such cases.128

All of these developments seemed to indicate that a new era was beginning, in which SGBV crimes would be taken seriously, pursued properly, and prosecutors would be provided with the tools and skills necessary to properly bring justice to victims.129 Luis Moreno-Ocampo, the first prosecutor of the ICC perhaps put it best when he said:

Gender crimes are prominent in our prosecutions because they are prominent in the contexts being prosecuted. This only becomes remarkable against the backdrop of the prior and still prevalent norm of denying their existence, ignoring them, shaming their victims, and or defining them in legally improvable ways. In other settings, it has been as if there was a tacit agreement to look the other way as women and children were sexually abused—minimizing, trivializing, denigrating, and silencing the victims, destroying their credibility and further violating their dignity, so abusers can continue unimpeded. The body of the ICC’s first cases…signals to the world that here, at least, the deal is off.130

Thus, there was immense hope that with the formation of the ICC, and the lessons learned from previous tribunals’ failures, SGBV crimes would find their way to the front of the international legal stage for the first time in history. It was against this backdrop of renewed hope that Prosecutor v. Jean-Pierre Bemba Gombo was decided.131 Indeed, the case was a first for the international legal community in several ways: Bemba’s arrest marked the first arrest under an ICC warrant for charges of rape,132 and it was the ICC’s first prosecution under Article 28, alleging the command responsibility theory of liability.133

Perhaps most notably for the SGBV community, however, was the fact that unprecedented victim participation was authorized in this case.134 A total of 5,229 victims were authorized to participate in the trial, pursuant to Article 68(3) of the Rome Statute.135 Furthermore, it was determined by Trial Chamber III that witnesses would be permitted to tender and examine evidence pertaining to guilt, and to question parties’ witnesses, providing victims an opportunity to directly challenge and refute testimony by witnesses supporting Bemba, a first in such trials.136 Following a trial which lasted almost four years,137 Bemba was convicted as a culpable commander under Article 28(a) of the Rome Statute for the crimes against humanity of murder and rape, as well as war crimes of murder, rape, and pillaging, resulting from the conduct of his MLC troops operating in the CAR between 2002–2003.138

On April 4, 2016, Bemba appealed the decision of the Trial Chamber on six grounds.139 Although Bemba appealed on six grounds, the majority of the Appeals Chamber determined that the second ground and part of the third ground of appeal were dispositive. Only the third ground of appeal is relevant to this comment.140

The Appeals Chamber determined that whether the Trial Chamber erred in finding that Bemba failed to take all necessary and reasonable measures to prevent or repress the commission of crimes as required for liability under Article 28(a) was alone dispositive.141 However, the majority nonetheless voiced additional concerns regarding the remainder of the third ground of appeal, namely whether Bemba had effective control over the MLC troops, and whether he had actual knowledge of crimes committed by MLC troops in the CAR, as required under Article 28(a),142 and so a brief analysis of the proof offered as to this ground will also be discussed here.

Of primary import in analyzing the Appeals Chamber decision is a brief look at the standard of review applied by the chamber. The Appeals Chamber properly noted that, under Article 83(2) of the Rome Statute, the Appeals Chamber may only intervene if it:

finds the proceedings appealed from were unfair in a way that affected the reliability of the decision or sentence, or that the decision or sentence appealed from was materially affected by error of fact or law or procedural error.143

The Appeals Chamber then clarified this standard as it related to factual errors, stating that the task of the Appeals Chamber “[was] to determine whether a reasonable trial chamber could have been satisfied beyond a reasonable doubt as to the finding” thereby indicating some deference to the Trial Chamber’s findings of fact.144 Indeed, the Appeals Chamber stated that it would not assess evidence de novo in order to determine whether it would have reached the same conclusion, but would instead only ask whether a reasonable trial chamber could have been satisfied beyond a reasonable doubt as to the fact in question.145 This is unsurprising, as it is a standard of review which is often applied in domestic cases (at least within the United States).

What is both interesting and significant is the language that immediately followed, whereby the Appeals Chamber suggested the possibility of finding error anywhere that the finding reached by the Trial Chamber was not the only reasonable conclusion available.146 In this way, the Appeals Chamber seemingly negated the prior portion of ¶ 42 stating that the Appeals Chamber would not engage in de novo review to determine whether it would reach the same conclusion; instead the language here seemed to indicate that for a factual finding to remain intact, it was necessary that the Appeals Chamber would reach the same conclusion, or the conclusion would be subject to reversal.147

As to whether Bemba took all necessary and reasonable measures, as required by Article 28(a), the Trial Chamber found that Bemba had, in fact, taken some measures in response to allegations of the crimes being committed by MLC troops in the CAR.148 These included the Mondonga Inquiry, a visit to the CAR in 2002 in which Bemba met with the UN representative in the CAR General Cissé as well as President Patassé, a speech given at PK12, the trial of Lieutenant Bomengo and other at the Gbadolite court-martial, the Zongo Commission, correspondence with General Cissé, correspondence in response to the FIDH Report, and the Sibut Mission.149

Importantly however, the Trial Chamber found significant shortcomings in each of these measures, noting that “all of these measures were limited in mandate, execution, and/or results.”150 Specifically, the case file resulting from the Mondonga Inquiry suggested that investigators had failed to pursue relevant leads involving the responsibility of various commanders, including Colonel Moustapha himself, as well as reports of rape.151 Furthermore there were highly irregular procedures, including interviewing suspects in the middle of the night, and the inquiry’s only results were the trial of seven low-level soldiers for pillaging small sums of money and goods.152

The Trial Chamber’s analysis of the Zongo commission reached similar results: despite the fact that the commission had been created in response to public allegations of rape, murder, and pillaging by MLC troops, the commission was mandated only to determine whether pillaged goods from CAR were entering the DRC through Zongo.153 The commission failed to bring any soldiers before it for questioning, despite having the ability to do so, and no action was taken even in regards to pillaging uncovered by the commission, let alone more serious allegations.154 Similarly, after receiving the FIDH report, containing allegations of murder, rape and pillaging by MLC soldiers, and even analyzing Bemba’s criminal liability for those crimes, Bemba responded by sending a letter to the FIDH president mirroring a previous letter to General Cissé requesting assistance in investigating the allegations, however Bemba never took any action to follow up on those letters.155 The Sibut Mission, established in response to widespread media allegations of crimes by MLC soldiers in Bozoum and Sibut, appeared to be a sham as well.156

The Trial Chamber also noted that there was corroborated evidence indicating that even these insufficient measures were only taken as a result of a desire to counter public allegations against the MLC, thus lacking any intent by Bemba to take all necessary and reasonable measures, which in turn explained their conspicuous shortcomings.157 In order to clarify what would have sufficed as necessary and reasonable measures, the Trial Chamber listed six independent actions that were within the ability of Bemba to implement and would have served to prevent or repress the crimes committed by MLC troops, which indicated he had failed to take all reasonable and necessary measures.158

As to whether Bemba knew that the MLC forces were committing or about to commit the crimes alleged, as required by Article 28(a), the Trial Chamber found that Bemba did have the requisite knowledge.159 While noting that Bemba was a remote commander, operating from the DRC, the Trial Chamber noted that Bemba was the commander-in-chief, and held ultimate authority over all primary aspects of the MLC.160 Furthermore, communications equipment ranging from radios to satellite phones and Thurayas effectively enabled MLC commanders in the CAR to communicate directly with Bemba.161 Bemba visited the CAR several times during the conflict, and had direct communications with Colonel Moustapha as to the operations on the ground.162 There were even logbook records of transmissions from MLC commanders coming through the MLC transmissions center, which were then taken to Bemba.163

If this were not sufficient, there was additional evidence that military and civilian intelligence services provided reports to Bemba, including reports of murder, rape, a pillaging by MLC troops.164 Throughout the 2002–2003 CAR operation, local as well as international media outlets reported allegations of rape, pillaging and murder by MLC soldiers.165 In fact, it was in response to these reports that Bemba initiated the Mondonga inquiry, thus indicating he had received the reports.166 The FIDH report in 2003 included a detailed accounting of murder, rape, and pillaging by MLC troops, and in a letter to the FIDH President, Bemba specifically referenced this report, again indicating he had received it.167

Finally, in March 2003, an attack was carried out by Colonel Moustapha and MLC forces on Mongoumba, where only civilians were present.168 Information gathered from Thuraya devices indicated that Bemba was in constant contact with Moustapha the day before, as well as the day of the attack, and the Trial Chamber inferred that Bemba knew his forces would commit crimes against civilians during the attack, which was later confirmed by media reports.169 The Trial Chamber thus held:

In light of the above factors—in particular, the notoriety of the crimes, Mr. Bemba’s position, the available channels of communication, the regular contact between Mr. Bemba and the MLC officials in the CAR, general sources of information of crimes by MLC soldiers (including media, NGO, and MLC intelligence reports), and Mr. Bemba’s direct knowledge of the allegations of murder, rape, and pillaging by MLC soldiers at specific times throughout the 2002–2003 CAR operation…the Chamber finds beyond a reasonable doubt that…Mr. Bemba knew that MLC forces under his effective authority or control were committing or about to commit the crimes against humanity of murder and rape, the war crimes of murder, rape and pillaging.170

The Appeals Chamber, in turn, reviewed these findings of fact.171 The findings of fact as to whether Bemba took all necessary and reasonable measures were reviewed in light of Bemba’s allegations that because he was a remote commander, operating from another country, the Trial Chamber had failed to adequately consider the limitations on his ability to take certain measures.172 Specifically, Bemba argued that command responsibility was only appropriate in situations where the commander took no action whatsoever, or was actually participating or present when the crimes were committed.173

In analyzing the Trial Chamber’s findings, the Appeals Chamber held that the findings as to whether Bemba took all necessary and reasonable measures were, in fact, “tainted by serious errors.”174 An analysis of what measures are reasonable and necessary, the Appeals Chamber noted, cannot be undertaken with the benefit of hindsight, but must be viewed in light of what measures were available and feasible at the time.175

The Appeals Chamber went on to emphasize that Bemba was a remote commander, with troops in a foreign country, faulting the Trial Chamber for not adequately considering that his ability to initiate investigations in the CAR was limited as a result.176 Finally, while the Appeals Chamber admitted that the motivations of a commander in undertaking measures are relevant to whether or not such measures were conducted in good faith, it simultaneously alleged that the Trial Chamber placed too much emphasis on Bemba’s motivations, allowing them to “colour[] its entire assessment of the measures he took.”177

These findings are troublesome for several reasons. Firstly, as the dissent points out, the Appeals Chamber majority criticizes the Trial Chamber for its failure to properly consider Bemba’s status as a remote commander, and to assess in concreto what measures should have been taken, however the Appeals Chamber fails to undertake such an analysis itself.178 Instead, it appears that by modifying the standard of review as discussed above, the Appeals Chamber found it appropriate to overturn factual findings of the Trial Chamber wherever it found any doubt or disagreed with the Trial Chamber’s conclusions. This stands in stark contrast to conducting a comprehensive review of the record to determine whether a reasonable Trial Chamber could have reached the same conclusion, which the Appeals Chamber had stated was the standard of review .179 Furthermore, the Trial Chamber had conducted an assessment of what measures were available to Bemba, and had listed them in concreto in its decision, which creates significant confusion about just what level of proof the Appeals Chamber majority requires.180

Additionally, the Trial Chamber’s findings were based on a review of the entire factual record. The reason for deference to Trial Chamber findings is typically due to the fact that they are better suited to make findings of fact, given that they are able to review the entire factual record181 Here, the Appeals Chamber reviewed only the testimony of a witness whose credibility the Trial Chamber found dubious, a statement by the defendant that he sent a letter to the CAR, and several other inconsequential pieces of evidence to effectively invalidate “hundreds of items of evidence relied upon by the Trial Chamber.”182

With regard to Bemba’s limitations as a remote commander and his ability to conduct investigations in the CAR, the Appeals Chamber majority again reversed the Trial Chamber’s findings, seemingly lacking an evidentiary basis for doing so, and once again based its reversal on a limited portion of the record, and finding doubt as to the Trial Chamber’s finding of fact.183 This stands in stark contrast to the Trial Chamber’s finding that Bemba and not the CAR authorities had the primary authority to investigate and punish MLC troops for their activities in the CAR, which was based on the testimony of numerous witnesses.184

Perhaps most perplexing, however, was the majority’s assertion that it had “concerns regarding the Trial Chamber’s findings relevant to Mr. Bemba’s…actual knowledge of crimes committed by MLC troops in the CAR.”185 Although the Appeals Chamber did not further elaborate on these concerns, this statement is nonetheless highly significant.

As was discussed previously in this comment, SGBV crimes have a long history of being ignored as lesser crimes. In addition, even when such crimes have been pursued, procedural and definitional issues endemic to the prosecution of SGBV crimes have often caused such charges to be dropped from indictments or caused problems of proving out the offenses beyond a reasonable doubt. These difficulties are due in no small part to the fact that often, particularly in the context of an ongoing conflict, gathering the necessary evidence can be extremely difficult, which results in a heavy reliance on witness testimony, historically viewed as problematic. That being said, in many respects, the Bemba trial constituted what should have been the ideal conditions to attain an SGBV conviction.

The ICC was a tribunal that had an effective and coherent prosecutorial strategy, clear definitions of the offenses, and a will and desire to prosecute and pursue justice, all of which had been previously lacking in such prosecutions. Additionally, where many SGBV prosecutions lack evidence above and beyond witness testimony, the record in Bemba contains significant evidence to prove out the requisite elements, especially his knowledge of the MLC troops’ conduct. The evidence included international media reports, electronic and hard-copy communication records, hard-copy reports from numerous agencies describing the atrocities being committed, and proof of the delivery of these reports to the commander sought to be held responsible. This begs an important question which is, if a case such as Bemba fails, where the evidence is far more voluminous that can typically be expected, can there ever be an effective prosecution of SGBV crimes before the ICC?

V. Conclusion

The decision of the Appeals Chamber majority, particularly the vague and onerous level of proof required, raise significant doubt that an effective SGBV case could ever be proved out to the chamber’s satisfaction. Furthermore, even if such a case were proved out, as here, the essentially de novo review standard imposed by the Appeals Chamber creates significant uncertainty for both victims and the accused, providing little-to-no authority to Trial Chamber decisions. These problems are only exacerbated by the fact that, inexplicably, the Appeals Chamber determined it was appropriate, given the perceived factual errors, to acquit the accused, rather than to remand the case to the Trial Chamber for additional findings. There seems to be little explanation for this decision, particularly given the fact that such a decision effectively nullified four years of effort, and the participation of countless witnesses, victims, and resources.

Given all of these factors, it seems inevitable that this case will send yet another clear, decisive message to victims of SGBV crimes that the offenses against them are unimportant, their testimony is not to be believed, and that the harms done to them are unlikely to ever see justice served. Simultaneously it sends a message to prosecutors that regardless of the level of evidence obtained, convictions for SGBV crimes are unlikely to stand.

Taken together, it is likely that, even if victims somehow have not lost faith in international tribunals, prosecutors may once again be disincentivized to pursue these crimes, due to the fact that the immense resources required are nonetheless unlikely to result in a conviction or justice for the victims. For all of these reasons, the Appeals Judgment in Bemba, particularly with regards to the level of proof required, is likely extremely harmful to the future prosecution of SGBV crimes, and delegitimizes the ICC in the eyes of victims, who have once again been relegated to the periphery.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3343, Judgment pursuant to Article 74 of the Statute (TC III, Mar. 21, 2016) [hereinafter Bemba Trial Chamber Judgment], available online, archived. ↩

2. 2.

   Olivera Simić, Silenced Victims of Wartime Sexual Violence 14 (2018), paywall. ↩

3. 3.

   Id. ↩

4. 4.

   Id. ↩

5. 5.

   Hilmi M. Zawati, Fair Labelling and the Dilemma of Prosecuting Gender-Based Crimes at the International Criminal Tribunals 7 (2014), paywall, doi. ↩

6. 6.

   Simić, supra note 2, at 14. ↩

7. 7.

   See id.

   (noting that no rape charges were brought during Nuremberg tribunals).

   See also Zawati, supra note 5, at 7

   (noting the failings of the IMT and IMTFE). ↩

8. 8.

   Nanking Massacre, History (Aug. 21, 2018), available online. ↩

9. 9.

   Id. ↩

10. 10.

    Id. ↩

11. 11.

    Simić, supra note 2, at 15. ↩

12. 12.

    Id. ↩

13. 13.

    Id. ↩

14. 14.

    Zawati, supra note 5, at 7

    (although some have argued that rape and perhaps other SGBV crimes were impliedly included in these statutes under “inhuman acts” and “ill treatment,” Zawati argues that such subjugation under what are perceived as more severe crimes, violates the doctrine of fair labelling, requiring that a crime is expressly labelled, and explicitly defined, such that its definition is not merely extended by analogy). ↩

15. 15.

    Id. at 7; see also Simić, supra note 2, at 14–15. ↩

16. 16.

    Simić, supra note 2, at 14. ↩

17. 17.

    Zawati, supra note 5, at 7. ↩

18. 18.

    Id. ↩

19. 19.

    Id. at n.25. ↩

20. 20.

    Zawati, supra note 5, at 7. ↩

21. 21.

    Simić, supra note 2, at 13. ↩

22. 22.

    Laurie Green, First-Class Crimes, Second-Class Justice: Cumulative Charges for Gender-Based Crimes at the International Criminal Court, 11 Int’l Crim. L. Rev. 529, 529 (Jan. 1, 2011), paywall, doi. ↩

23. 23.

    Zawati, supra note 5, n.20.

    (Sir Peter van Hagenbach was the first person to be internationally prosecuted for a gender-based crime. Hagenbach was convicted of war crimes—including rapes committed by troops under his command—and was sentenced to death. Importantly, however, he was convicted only because he did not officially declare war. Had he officially declared war, the rapes committed by his troops would have been seen as permissible since there would have been an active conflict). ↩

24. 24.

    Green, supra note 22, at 529–30. ↩

25. 25.

    Id.

    (discussing the view of women as property and its effects on the treatment of rape).

    Cf. Zawati, supra note 5, at 7

    (discussing the failures of both the Nuremberg Tribunal and the IMTFE to address rape in any meaningful way). ↩

26. 26.

    Zawati, supra note 5, at 25. ↩

27. 27.

    Id. at 26. ↩

28. 28.

    Id. at 27.

    (Zawati provides the example of distinguishing between the single rape of a woman and the multiple rape of another woman with the purpose of impregnating her. Although both crimes could be considered rape, they inflict different harm, and have different culpability, thus they should not both simply be subsumed under the broad category of “rape”). ↩

29. 29.

    Id. at 34. ↩

30. 30.

    Id. at 27. ↩

31. 31.

    Id. at 7, n.23. ↩

32. 32.

    Id. at 32. ↩

33. 33.

    Id. at 30.

    (Zawati gives an example of convicting someone under a very broad definition of “rape,” where there was no penetration or even physical contact of any kind, it may unfairly stigmatize the offender as a “rapist” and the victim as a “victim of rape”). ↩

34. 34.

    Id. at 31. ↩

35. 35.

    Id. at 7, n.23. ↩

36. 36.

    Id. at 31. ↩

37. 37.

    Simić, supra note 2, at 15. ↩

38. 38.

    Fiona O’Regan, Prosecutor vs. Jean-Pierre Bemba Gombo: The Cumulative Charging Principle, Gender-Based Violence, and Expressivism, 43 Geo. J. Int’l L. 1323, 1351 (2012), paywall.

    (O’Regan discusses the “expressive” function of law, which suggests that legal actions, much like any other action, have an expressive function, conveying a community’s substantive values to the actors. Indeed, O’Regan argues, the expressivist function is perhaps the most effective function of international law, as the other functions of international law (namely deterrence and retribution) are often rightfully doubted as to their efficacy. Thus a consistent message that SGBV crimes are less important, and a consistent failure to effectively prosecute is likely to send a message to victims and perpetrators that such crimes will not be pursued, and by extension, that such conduct is tolerated).

    See also Zawati, supra note 5, at 7–8. ↩

39. 39.

    Simić, supra note 2, at 40. ↩

40. 40.

    Id.; see also Zawati, supra note 5, at 8. ↩

41. 41.

    Simić, supra note 2, at 40. ↩

42. 42.

    United Nations General Assembly, Rape and Abuse of the Women in the Areas of Armed Conflict in the Former Yugoslavia, A/RES/48/143 (Dec. 20, 1993), available online. ↩

43. 43.

    Simić, supra note 2, at 40–41. ↩

44. 44.

    Id. at 40 n.6. ↩

45. 45.

    See Alona Hagay-Frey, Sex and Gender Crimes in the New International Law n.228 (2011). ↩

46. 46.

    Id. at 97. ↩

47. 47.

    Id. at 79. ↩

48. 48.

    See Zawati, supra note 5, at 8. ↩

49. 49.

    Id. ↩

50. 50.

    Clay Anthony, In the Case of Prosecutor v. Jean-Pierre Bemba Gombo: Cementing Sexual Violence and Command Responsibility within International Criminal Law, 25 Tul. J. Int’l & Comp. L. 403, 408 (2016), paywall. ↩

51. 51.

    Id. at 408

    (discussing the involvement of feminist groups in the formation of the governing statutes for the ICTR and ICTY).

    See also Hagay-Frey, supra note 45, at 66

    (discussing the “era of silence” and its implications). ↩

52. 52.

    Anthony, supra note 50, at 408. ↩

53. 53.

    See Statute for the International Tribunal for Rwanda, S.C. Res. 955 Annex, Art. 3(g) U.N. Doc. S/RES/955 (Nov. 8, 1994) [hereinafter ICTR Statute], available online.

    Statute for the International Tribunal for the Former Yugoslavia, S.C. Res. 827, Art. 5(g), U.N. Doc. S/RES/827 (May 25, 1993) [hereinafter ICTY Statute], available online. ↩

54. 54.

    Hagay-Frey, supra note 45, at 83. ↩

55. 55.

    The Prosecutor v. Anto Furundžija, IT-95-17/1-T, Judgement ¶¶ 264–75 (ICTY TC, Dec. 10, 1998) [hereinafter Furundžija Trial Chamber Judgment], available online; The Prosecutor v. Zejnil Delalić, Zdravko Mucić, Hazim Delić and Esad Landžo, IT-96-21-T, Judgement, ¶¶ 942–43 (ICTY Trial Chamber, Nov. 16, 1998) [hereinafter Čelebići Trial Chamber Judgment], available online. ↩

56. 56.

    Anthony, supra note 50, at 409. ↩

57. 57.

    Hagay-Frey, supra note 45, at 96. ↩

58. 58.

    Id. at 97. ↩

59. 59.

    Id. at 97. ↩

60. 60.

    Anthony, supra note 50, at 409. ↩

61. 61.

    Hagay-Frey, supra note 45, at 97. ↩

62. 62.

    Id. at 97–98. ↩

63. 63.

    Id. at 98. ↩

64. 64.

    Id. ↩

65. 65.

    Id. at 98. ↩

66. 66.

    Id. ↩

67. 67.

    Id. ↩

68. 68.

    Id. ↩

69. 69.

    Id. at 99. ↩

70. 70.

    ICTR Statute, supra note 53, Article 6(3); ICTY Statute, supra note 53, Article 7(3). ↩

71. 71.

    Čelebići Trial Chamber Judgment, supra note 55, at ¶¶ 1010, 1047, 1072. ↩

72. 72.

    See Zawati, supra note 5, at 117

    (noting that many feminist scholars have considered these tribunals a “complete failure”).

    Hagay-Frey, supra note 45, at ¶ 101

    (discussing the various failings of both the ICTR and ICTY from a scholarly perspective). ↩

73. 73.

    Zawati, supra note 5, at 177

    (alleging that the ICTY and ICTR provided, at best, only “symbolic gender justice” by convicting only a few perpetrators). ↩

74. 74.

    Id. at 119–20

    (discussing several cases in which such charges had to be withdrawn by the prosecutor).

    See also Hagay-Frey, supra note 45, at 97

    (discussing the lack of SGBV crime charges in the initial indictment of Akayesu). ↩

75. 75.

    Zawati, supra note 5, at 118–19. ↩

76. 76.

    Ruth Wedgwood, ICC Prosecution of Mass Rape Crimes Will Require some Evidence from Victims, but the Hardship of Testifying can be Mitigated, in Contemporary Issues Facing the International Criminal Court 300, 300 ( Richard H. Steinberg, ed., Apr. 8, 2016), doi, earlier version (Jun. 26, 2012) available online. ↩

77. 77.

    Id. at 301

    (discussing the fact that some of the judges of the ICC have likely not served as professional judges). ↩

78. 78.

    See Linnea Kortfält, Sexual Violence and the Relevance of the Doctrine of Superior Responsibility in the Light of the Katanga Judgment at the International Criminal Court, 84 Nordic J. Int’l L. 533, 552 (2015), available online

    (discussing the acquittal of Germain Katanga as a result of the failure to link him directly to the acts committed).

    Cf. Kelly Dawn Askin, Can the ICC Sustain a Conviction for the Underlying Crime of Mass Rape without Testimony from Victims?, in Contemporary Issues Facing the International Criminal Court 275 ( Richard H. Steinberg, ed., Apr. 8, 2016), doi, earlier version (Jun. 26, 2012) available online

    (arguing that in modern conflicts, it may be more likely that such technological evidence could be obtained, reducing the need for victim participation). ↩

79. 79.

    John Hagan, The Use of Sample Survey Interviews as Evidence of Mass Rape, in Contemporary Issues Facing the International Criminal Court 295, 295 ( Richard H. Steinberg, ed., Apr. 8, 2016), doi, earlier version (Jun. 26, 2012) available online. ↩

80. 80.

    Wedgwood, supra note 76, at 300. ↩

81. 81.

    See Zawati, supra note 5, at 120

    (discussing, as an example, the ICTY prosecutor being forced to remove rape charges from Tadić’s indictment due to failure to provide adequate security to the key witness). ↩

82. 82.

    See generally, Askin, supra note 78. ↩

83. 83.

    Id. at 276. ↩

84. 84.

    Id. at 279. ↩

85. 85.

    Id. at 276. ↩

86. 86.

    Id. ↩

87. 87.

    Anne-Marie de Brouwer, Cases of Mass Sexual Violence Can be Proven without Direct Victim Testimony, in Contemporary Issues Facing the International Criminal Court 282, 290 ( Richard H. Steinberg, ed., Apr. 8, 2016), doi, earlier version (Jun. 26, 2012) available online. ↩

88. 88.

    Id.; see also Simić, supra note 2, at 14. ↩

89. 89.

    Askin, supra note 78, at 276. ↩

90. 90.

    See Wedgwood, supra note 76, at 302. ↩

91. 91.

    See generally Zawati, supra note 5. ↩

92. 92.

    Id. at 110. ↩

93. 93.

    Id. ↩

94. 94.

    Hagay-Frey, supra note 45, at 98; Zawati, supra note 5, at 110. ↩

95. 95.

    Zawati, supra note 5, at 115. ↩

96. 96.

    Id. ↩

97. 97.

    Id. ↩

98. 98.

    Id. ↩

99. 99.

    Id. ↩

100. 100.

     Hagay-Frey, supra note 45, at 93. ↩

101. 101.

     Id. ↩

102. 102.

     Zawati, supra note 5, at 120

     (discussing the Tadić trial, where a lack of adequate security for the key witness led to SGBV charges being dropped, and the case of Tharcisse Muvunyi, where the lead witness declined to testify and moved without providing any location information). ↩

103. 103.

     Id. at 118; id. at 73; see also Chile Eboe-Osuji, International Law and Sexual Violence in Armed Conflicts 146 (2012), paywall

     (discussing the reasoning for failure to include specific body parts as furthering the purposes of international law).

     Eboe-Osuji at 246

     (discussing the impacts on victims of requiring a lack of consent element). ↩

104. 104.

     Id. at 72. ↩

105. 105.

     See Zawati, supra note 5, at 24

     (stating that fair labelling requires distinguishing between offenses by subdividing, defining, and labelling them in order to convey the nature and magnitude of each crime. The failure to do so affects the defendant, the victim, and the public, as discussed above).

     See also Zawati, supra note 5, at 14

     (providing an example whereby prosecuting forced nudity and aggravated rape under the same label of sexual assault is violative of the doctrine, failing to convey appropriate blameworthiness to the public, proper stigmatization to the defendant, and properly conveying the individualized harm done to the victim). ↩

106. 106.

     Furundžija Trial Chamber Judgment, supra note 55, at ¶ 174. ↩

107. 107.

     Eboe-Osuji, supra note 103, at 146

     (discussing the drastic departure from Akayesu, and noting that this new definition requires coitus in order to establish rape). ↩

108. 108.

     Zawati, supra note 5, at 74. ↩

109. 109.

     The Prosecutor v. Dragoljub Kunarac, Radomir Kovač, and Zoran Vuković, IT-96-23-T & IT-96-23/1-T, Judgement, ¶ 460 (ICTY TC, Feb. 22, 2001), available online. ↩

110. 110.

     Hagay-Frey, supra note 45, at 146. ↩

111. 111.

     Id. at 116. ↩

112. 112.

     See, e.g., The Prosecutor v. Laurent Semanza, ICTR-97-20-T, Judgement and Sentence, ¶ 346 (ICTR TC III, May 15, 2003), available online

     (for instance, in the Semanza case, the Trial Chamber focused on the mens rea standard, stating it required intent to sexually penetrate the victim, with knowledge that the victim does not consent to the act, resulting in Semanza being found guilty of only one isolated incident of rape, despite the fact that he had regularly and directly ordered his subordinates to use rape. This effectively destroyed the possibility of bringing further rape crimes before the tribunal). ↩

113. 113.

     Anthony, supra note 50, at 410. ↩

114. 114.

     Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Preamble, available online. ↩

115. 115.

     Green, supra note 22, at 530–31. ↩

116. 116.

     Id. at 531. ↩

117. 117.

     See Anthony, supra note 50. ↩

118. 118.

     Rome Statute, supra note 114, at Article 7(1)(g). ↩

119. 119.

     Id. at Arts. 7(1)(g) & 8(2)(b)(xxii). ↩

120. 120.

     Anthony, supra note 50, at 410. ↩

121. 121.

     See International Criminal Court, Elements of Crimes, ICC-ASP /1/3, Arts. 7, 8 (Sep. 9, 2002, updated May 31, 2010), available online, archived. ↩

122. 122.

     Rome Statute, supra note 114, at Article 28. ↩

123. 123.

     Kortfält, supra note 78, at 552. ↩

124. 124.

     Luis Moreno-Ocampo, The Place of Sexual Violence in the Strategy of the ICC Prosecutor, in Sexual Violence as an International Crime: Interdisciplinary Approaches 151 (Anne-Marie de Brouwer, Charlotte Ku, Renée Römkens & Larissa van den Herik, eds., 2013). ↩

125. 125.

     Rome Statute, supra note 114, at Article 54(1)(b). ↩

126. 126.

     Id. at Article 68(1). ↩

127. 127.

     Moreno-Ocampo, supra note 124, at 153. ↩

128. 128.

     Id. ↩

129. 129.

     Id. at 156. ↩

130. 130.

     Id. ↩

131. 131.

     Bemba Trial Chamber Judgment, supra note 1. ↩

132. 132.

     Green, supra note 22, at 532. ↩

133. 133.

     Mélanie Vianney-Liaud & Carine Pineau, Assessing Victims’ Contribution to the Determination of the Truth in the Bemba Case, 12 Eyes on the ICC 51 (2016), paywall. ↩

134. 134.

     Id. ↩

135. 135.

     Bemba Trial Chamber Judgment, supra note 1, at ¶ 18. ↩

136. 136.

     Vianney-Liaud, supra note 133, at 54–55. ↩

137. 137.

     Bemba Trial Chamber Judgment, supra note 1, at ¶¶ 10–16. ↩

138. 138.

     Id. ¶ 742. ↩

139. 139.

     The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08 A, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute”, ¶ 29 (AC, Jun. 8, 2018) [hereinafter Bemba Appeals Chamber Judgment], available online, archived. ↩

140. 140.

     Id. ¶ 32. ↩

141. 141.

     Id. ↩

142. 142.

     Id. ↩

143. 143.

     Id. ¶ 35. ↩

144. 144.

     Id. ¶ 38. ↩

145. 145.

     Id. ¶ 42. ↩

146. 146.

     Id. ↩

147. 147.

     Id. ↩

148. 148.

     Bemba Trial Chamber Judgment, supra note 1, at ¶ 719. ↩

149. 149.

     Id. ↩

150. 150.

     Id. ¶ 720. ↩

151. 151.

     Id. ↩

152. 152.

     Id. ↩

153. 153.

     Id. ¶ 722. ↩

154. 154.

     Id. ¶ 720. ↩

155. 155.

     Id. ¶¶ 723–24. ↩

156. 156.

     Id. ¶ 725

     (noting that those on the mission were met upon landing and taken to a secluded home where only limited interviews were permitted, and in a coercive atmosphere with armed MLC soldiers walking amongst the interviewees). ↩

157. 157.

     Id. ¶ 729. ↩

158. 158.

     Id. ¶¶ 729–30. ↩

159. 159.

     Id. ¶ 717. ↩

160. 160.

     Id. ¶ 706. ↩

161. 161.

     Id. ¶ 707. ↩

162. 162.

     Id. ↩

163. 163.

     Id. ↩

164. 164.

     Id. ¶ 708. ↩

165. 165.

     Id. ¶ 709. ↩

166. 166.

     Id. ¶ 711. ↩

167. 167.

     Id. ¶ 714. ↩

168. 168.

     Id. ¶ 716. ↩

169. 169.

     Id. ↩

170. 170.

     Id. ¶ 717. ↩

171. 171.

     Bemba Appeals Chamber Judgment, supra note 139, at ¶¶ 120–89. ↩

172. 172.

     Id. ¶¶ 138, 145, 146. ↩

173. 173.

     Id. ¶ 138. ↩

174. 174.

     Id. ¶ 166. ↩

175. 175.

     Id. ¶¶ 168–70. ↩

176. 176.

     Id. ¶ 172. ↩

177. 177.

     Id. ¶¶ 176–78. ↩

178. 178.

     The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3636-Anx1-Red, Dissenting Opinion of Judge Sanji Mmasenono Monageng and Judge Piotr Hofmański, ¶ 46 (AC, Jun. 8, 2018), available online, archived. ↩

179. 179.

     Id. ¶ 47. ↩

180. 180.

     Id. ¶ 52. ↩

181. 181.

     Id. ¶ 47. ↩

182. 182.

     Id. ↩

183. 183.

     Id. ¶ 54. ↩

184. 184.

     Id. ¶ 56. ↩

185. 185.

     Bemba Appeals Chamber Judgment, supra note 139, at ¶ 32. ↩