On March 7, the International Criminal Court in The Hague delivered its third judgment, finding Germain Katanga, a Congolese militia leader, guilty of promoting a brutal attack on civilians in eastern Congo in 2003.
For the often-criticized tribunal, the successful completion of another trial marks a welcome step forward, even if in this case, it is something of a partial victory. The trial has been troubled by questions of whether the ICC properly protected Katanga’s rights as a defendant—one of the three judges decided they had not. And the verdict itself is also troubling in another way.
While Katanga was found to be indirectly responsible for the massacre that occurred, he was acquitted of all responsibility for the vicious mass rape that also occurred in the attack on Bogoro village in Ituri province.
This is a devastating blow to the victims of sex crimes, and for the survivors of rape and sexual slavery from Bogoro, particularly those who bravely told their horrifying stories to the court in The Hague. While survivors of sexual violence weren’t avenged by the judgment, they can still find some solace in the fact that Katanga was convicted and will remain off the streets and behind bars for other nonsexual crimes likely also committed against them.
When I began my doctoral dissertation in 1993 on how to prosecute war crimes against women, I often heard doubt expressed that rape was even a war crime. It was regarded as an inevitable consequence of conflict or a mere by-product of war waged by men. Things have changed enormously since then. Rape has been recognized as a war crime, a crime against humanity, and an instrument of genocide in international law. However, with the exception of the Charles Taylor trial at the Special Court for Sierra Leone, most of the international war crimes tribunals have done a poor job of convicting leaders of sex crimes.
But over a decade of its mandate to end impunity for certain atrocity crimes, the ICC has failed to convict anyone at all of rape, sexual slavery, or other sexual crimes. This must change immediately. While most judges seem to accept that leaders and others can be convicted of crimes such as killings, torture and pillage even when they are far from the crime scenes, there is great reluctance to hold individuals accountable for sex crimes unless they are the physical perpetrators, they were present when crimes were committed, or they can be linked to evidence encouraging the crimes.
It’s an appalling double standard, and perpetuates the view that rape is a byproduct of war, instead of an instrument of warfare. (It can and usually is both, not just the former.) There is vast and irrefutable evidence that sex crimes are regularly committed during armed conflict as a strategic part of a campaign of terror, destruction, and humiliation.
After studying this issue for two decades, I remain convinced that many of the gains we have seen, in the recognition of various forms of sexual violence as serious violations of international laws, are due in no small part to having more women in positions of power as investigators, prosecutors and judges in the international tribunals, as well the impact of an effectively organized caucus of women’s groups who have pushed for changes.
Despite the gender setback of the court’s Katanga ruling, it’s encouraging to see evidence that the ICC’s prosecutor’s office, now led by a woman, Fatou Bensouda of The Gambia, is showing increased commitment to gender justice. Last month, Bensouda’s office put out a draft policy paper on sexual and gender-based violence, so there is some hope that under her leadership, investigating and prosecuting these crimes will be greatly improved and prioritized.
But in the meantime, it’s a pity and a shame that international courts have not held many leaders accountable for sex crimes that are so widespread, systematic, and tacitly approved by the leadership. It’s a failure of international justice when it comes to holding to account senior leaders and others those most responsible for gender atrocity crimes.