Rape in the Ntaganda Case

The development of the definition of rape up to and including the latest ICC Ntaganda Case

Britt van den Broek SNR: 2013165 ANR: 673514 Bachelor Thesis Supervisor: mr. S.R.B. Walther Second reader: mr. dr. A.K. Bosma Liberal Arts & Sciences Major Law in an International Context June 2020

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Table of Contents

Introduction ...... 3 Chapter 2: The background information on the Ntaganda case ...... 7 1.1 The long history of violence within the Democratic Republic of the Congo ...... 7 1.2 The Ongoing Conflict and its Excessive Sexual Violence ...... 10 2.1 Sexual Violence in the Democratic Republic of the Congo ...... 11 2.2 Explanations for the Excessive Sexual Violence in the DRC? ...... 12 3.1 The International Criminal Court ...... 14 3.2 Ntaganda’s role in the DRC conflict ...... 16 3.3 The significance of the Ntaganda case ...... 18 Conclusion...... 18 Chapter 3: War Crimes and Crimes against Humanity ...... 20 3.1 The elements of crimes ...... 20 3.2 War Crimes ...... 21 3.3 Crimes against humanity ...... 23 Conclusion...... 24 Chapter 4: The Development of the Definition of Rape as a and as a Crime against Humanity before the Ntaganda Case ...... 26 4.1 The International Criminal Tribunals and their Definition of Rape...... 27 4.2 Rape before the ICTR ...... 28 4.2 Rape before the ICTY ...... 29 4.3 The Kunarac Case ...... 30 4.4 Contradictory Definitions? ...... 31 4.5 The International Criminal Court and its Definition of Rape ...... 32 4.6 Rape under the ICC Statute ...... 32 4.7 Rape in the Bemba Case ...... 33 4.8 Rape in the Katanga Case ...... 36 Conclusion...... 38 Chapter 5: Redefinition of Rape in the Ntaganda Case? ...... 40 5.1 Rape and Child Soldiers ...... 40 5.2 Rape in the Ntaganda Case ...... 42 5.3 Ntaganda Compared with Previous Cases ...... 45 Conclusion...... 49 References ...... 55

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Introduction

In the 1990’s, global outcry was sparked by the devastating stories of sexual violence against tens of thousands of women in the conflicts in Bosnia and .1 As stated by Sidebotham, chilling accounts of conflict-related sexual violence (CRSV) continue to be reported till this day.2 There’s a recognized increase in rates of sexual violence against women and girls during times of conflict.3 Whereas the specific cause of CRSV may be uncertain, the devastating impact that sexual violence has on the victims is not.4 The attack(s) on their bodies often have consequences both for physical as well as for the psychological wellbeing of the victim.5 CRSV is not a contemporary phenomenon that did not appear until the 1990’s. As emphasized by Wachala “rape and war have gone hand in hand since, and according to Brownmiller, the days of Helen and Troy”.6 This illustrates that CRSV is a phenomenon of all times. Despite the long-time prevalence of war time rape, however, little attention has been attributed to this crime in the past. Reliable documentary evidence of wartime rape cannot be found until World War I. Nevertheless, little to no attention was paid to the conflict related sexual violence in the aftermath of the war. As a result, according to Wachala, the perpetrators went unpunished.7 A similar story can be told with regard to the CRSV committed during the Second World War. Very few charges of rape and sexual offences were brought before the Tokyo Tribunal, even though the International Military Tribunal of the Far East (IMTFE) recognized in its indictment that gender-specific offences had occurred during the war. The persistent inaction concerning CRSV in the aftermath of both the first and the second World War indicates that rape and other acts of sexual violence were broadly considered to be an accepted ‘norm’ in times of armed conflict.8 Over time, however, the perception on wartime rape has altered, as it became gradually acknowledged that both rape and sexual violence in times of armed conflict are not merely caused by undisciplined troops or the existence of a particular armed conflict.9 The international community slowly came to accept that rape was (also) used as a weapon of war. By 2012, the UN itself even held that ‘rape can be classified as a weapon of war’.10 This altered perception also brought about changes in the (international) legal field. In contrast with the first and second World War, the field of international criminal law currently has multiple tools at its disposal which can be used to hold perpetrators of crimes of sexual

1 Emma Sidebotham, Joanne Moffatt, Kevin Jones, Sexual Violence in Conflict: A Global Epidemic, The Obstetrician & Gynaecologist, (2016). p.247 2 Emma Sidebotham, Joanne Moffatt, Kevin Jones, Sexual Violence in Conflict: A Global Epidemic, The Obstetrician & Gynaecologist, (2016). p.247 3 Emma Sidebotham, Joanne Moffatt, Kevin Jones, Sexual Violence in Conflict: A Global Epidemic, The Obstetrician & Gynaecologist, (2016). p.247 4 Emma Sidebotham, Joanne Moffatt, Kevin Jones, Sexual Violence in Conflict: A Global Epidemic, The Obstetrician & Gynaecologist, (2016). p.247 5 Emma Sidebotham, Joanne Moffatt, Kevin Jones, Sexual Violence in Conflict: A Global Epidemic, The Obstetrician & Gynaecologist, (2016). p.249 6 Kas Wachala, The Tools to Combat the War on Women’s Bodies: Rape and Sexual Violence against Women in Armed Conflict, The International Journal of Human Rights, (2012). p.533 7 Kas Wachala, The Tools to Combat the War on Women’s Bodies: Rape and Sexual Violence against Women in Armed Conflict, The International Journal of Human Rights, (2012). p.533 8 Kas Wachala, The Tools to Combat the War on Women’s Bodies: Rape and Sexual Violence against Women in Armed Conflict, The International Journal of Human Rights, (2012). p.534 9 Kas Wachala, The Tools to Combat the War on Women’s Bodies: Rape and Sexual Violence against Women in Armed Conflict, The International Journal of Human Rights, (2012). p.534 10 Kas Wachala, The Tools to Combat the War on Women’s Bodies: Rape and Sexual Violence against Women in Armed Conflict, The International Journal of Human Rights, (2012). p.535 3 and/or gender-based violence accountable for their crimes.11 The International Criminal Tribunal of Rwanda and the International Criminal Tribunal for the former Yugoslavia have contributed to the change in perception of wartime rape. Moreover, they managed to put an end to the complete impunity of the perpetrates of wartime rape.12 Nevertheless, conflict-related sexual violence persists till this day. A 2015 report of the UN indicated 19 countries in which CSRV posed a ‘significant degree of concern’.13 The Democratic Republic of the Congo (DRC) is one of the countries listed in that report.14 As noted by Jean-Bouchard, “the conflicts that are ravaging the DRC are generally considered some of the most complex and most violent in modern times”.15 The effects of the conflict are particularly felt in the eastern part of the country16, which is ‘home to some of the world’s most horrific documented cases of sexual violence against women’.17 Approximately 16% of the Congolese population has been, often multiple times, subjected to acts of sexual violence.18 On the first of July 2002, the International Criminal Court was established.19 Being the first permanent international court,20 it could have the potential to bring about a change with regard to wartime rape. However, that might be easier said than done. The ICC’s procedural history shows that “sexual and gender-based offences are the most vulnerable category of crimes brought before the ICC”.21 The court often stumbles upon issues of insufficient evidence or inadequate protection of witnesses. Consequently, as acknowledged by Kuniewicz, offenders charged with sexual and gender-based offences are rarely convicted for their crimes.22 In the last two decades, however, the ICC started to take offences of such nature much more seriously. Sexual and gender-based offences are now recognized, before the ICC, as crimes against humanity and as war crimes.23 The Bemba Gombo case, was the first cases brought before the ICC, in which the crime of rape took center state.24 Although the crime of rape was certainly addressed in the Bemba case, the ICC could not convict Mr. Bemba for wartime rape and other crimes of sexual violence.25 The Katanga case brought about a similar

11 Kas Wachala, The Tools to Combat the War on Women’s Bodies: Rape and Sexual Violence against Women in Armed Conflict, The International Journal of Human Rights, (2012). p.535 12 Kas Wachala, The Tools to Combat the War on Women’s Bodies: Rape and Sexual Violence against Women in Armed Conflict, The International Journal of Human Rights, (2012). p.542 13 Emma Sidebotham, Joanne Moffatt, Kevin Jones, Sexual Violence in Conflict: A Global Epidemic, The Obstetrician & Gynaecologist, (2016). p.247 14 Emma Sidebotham, Joanne Moffatt, Kevin Jones, Sexual Violence in Conflict: A Global Epidemic, The Obstetrician & Gynaecologist, (2016). p.248 15 Évelyne Jean-Bouchard, Sexual Violence Issues in Eastern DRC: Processes of Global and Local Co-constitution, Canadian Journal of African Studies, (2017). p.257 16 Évelyne Jean-Bouchard, Sexual Violence Issues in Eastern DRC: Processes of Global and Local Co-constitution, Canadian Journal of African Studies, (2017). p.257 17 Erika Carlsen, Ra/pe and War in the Democratic Republic of the Congo, Peace Review, p.474 18 Évelyne Jean-Bouchard, Sexual Violence Issues in Eastern DRC: Processes of Global and Local Co-constitution, Canadian Journal of African Studies, (2017). p.258 19 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.670-671 20 Kas Wachala, The Tools to Combat the War on Women’s Bodies: Rape and Sexual Violence against Women in Armed Conflict, The International Journal of Human Rights, (2012). p.543 21 Anna Kuniewicz, Case: International Criminal Court Prosecutor v. Bosco Ntaganda, Chicago-Kent Journal of International and Comparative Law, (2015). p.5 22 Anna Kuniewicz, Case: International Criminal Court Prosecutor v. Bosco Ntaganda, Chicago-Kent Journal of International and Comparative Law, (2015). p.5 23 Anna Kuniewicz, Case: International Criminal Court Prosecutor v. Bosco Ntaganda, Chicago-Kent Journal of International and Comparative Law, (2015). p.5 24 Kas Wachala, The Tools to Combat the War on Women’s Bodies: Rape and Sexual Violence against Women in Armed Conflict, The International Journal of Human Rights, (2012). p.543 25 Martha M. Bradley & Aniel de Beer, “All Necessary and Reasonable Measures” – The Bemba Case and the Threshold for Command Responsibility, International Criminal Law Review, (2020). p.1 4 outcome, as the accused was not convicted for CRSV.26 The outcome of these cases can be considered to be rather disappointing for the victims of rape and sexual violence.27 In the Ntaganda case, wartime rape was once again addressed by the ICC. Prosecutor Bensouda charged Mr. Ntaganda with 13 counts of war crimes and 5 counts of crimes against humanity.28 These charges included six charges of sexual violence: i.e. four counts of war crimes (rape, rape of child soldiers, sexual slavery of civilians, sexual slavery of child soldiers) and two counts of crimes against humanity (sexual slavery and rape).29 The fact that the Prosecutor included six charges of sexual violence illustrates that the ICC was eager to address sexual and gender-based offenses in this particular case. On the 8th of July 2019, the ICC found Ntaganda guilty of 18 counts of crimes against humanity and war crimes.30 The Ntaganda case, therewith, became the first case brought before the ICC in which the accused was convicted of crimes of sexual violence. As Mr. Ntaganda came to be the first individual to be convicted for wartime rape before the ICC, it is interesting to investigate what definition of rape the ICC used during this particular case and how this definition deviates from previous definitions. Therefore the main question discussed in this thesis is: How did the ICC Ntaganda case contribute in (re)defining rape as a war crime and as a crime against humanity? In order to provide a thorough answer to this complex question, I will first dive into several sub-questions related to this main question. The four sub-questions are divided over and answered in the first four chapters: 1. What is the background information of the Ntaganda case? 2. How are war crimes and crimes against humanity defined under International Criminal Law and how are these crimes dissimilar? 3. How did the definition of rape as a war crime and rape as a crime against humanity gradually develop in International Criminal Law until the ICC Ntaganda case? 4. Was the existing definition of rape as a war crime and rape as a crime against humanity (re)defined in the Ntaganda case? Multiple cases addressing wartime rape have already appeared before the international criminal tribunals and before the ICC. Consequently, a substantial proportion of the existing literature has already attributed attention to the development of the definition of rape up until the Ntaganda case. The ICC Ntaganda case, however, it not only the latest ICC case in which a definition for wartime rape is formulated, but also the first case in which the ICC successfully convicted an individual for both rape as a war crime and rape as a crime against humanity. It is therefore interesting to compare the Ntaganda definition of rape with the definitions formulated in previous cases and see where the Ntaganda definition is similar/dissimilar to these other definitions. In order to research this question, I consulted a variety of sources ranging from academic articles, to ICTR and ICTY jurisprudence to the relevant ICC legislation, which were all used as sources of information.

26 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, Nordic Journal of International Law, (2015). p.536 27 Anna Kuniewicz, Case: International Criminal Court Prosecutor v. Bosco Ntaganda, Chicago-Kent Journal of International and Comparative Law, (2015). p.5 28 Jennifer Tridgell, Prosecutor v. Ntaganda: The End of Impunity for Sexual Violence against Child Soldiers, Australian International Law Journal, (2017). p.154 29 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.682 30 ICC, Trial Chamber VI, (7 November 2019), Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda, ICC-01/04- 02/06, p.117 5

In order to understand the widespread (sexual) violence in the ongoing Congo conflict, some background information about Congo’s history and the ongoing conflict needs to be provided. This contextual background will delineate the context in which the sexual violence crimes addressed in the Ntaganda case were committed and clarify Ntaganda’s role within the DRC conflict. Moreover, the involvement of the ICC and the significance of the Ntaganda case will be discussed. Chapter 3 will then pursue by providing a detailed overview of the definitions of war crimes and crimes against humanity under International Criminal Law. This will be followed by an analysis of the development of the definition of rape until the ICC Ntaganda case. Chapter 4 will therefore dive into the jurisprudence of the international criminal tribunals and the previous cases brought before the ICC. Attention will be attributed to the ICTR Akayesu case, the ICTY Furundžija, Kunarac and Čelebići cases. With regard to the ICC, the Rome Statute and the Bemba and Ntaganda cases will be discussed. Chapter 5, will then shed some light on the definition of rape as formulated and applied in the ICC Ntaganda case and examine the differences and similarities of the Ntaganda definition with previous definitions. After all the relevant legislation has been discussed, Chapter 6 will then close with a conclusion and attempt to formulate an answer to the research question.

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Chapter 2: The background information on the Ntaganda case

For the past two and a half decades, the Democratic Republic of the Congo (DRC) has been characterized by an increasingly brutal conflict. Numerous armed factions compete with each other over resources, land and soldiers.31 As the conflict continues, the sexual violence that comes with it has exceeded all limits. Within Congo’s regular society, sexual violence has become ‘almost normal’.32 These crimes are only further encouraged by the impunity of the militia and soldiers. In response to the excessive sexual violence, the Congolese government adopted the Military Code in 2002. This Code makes it possible to prosecute sexual offences as crimes against humanity. However, till this day, the Code has rarely been used to combat sexual crimes.33 But, “despite its lack of efficacy at this time, the DRC purports to stand against sexual violence during conflict”.34 The Congolese President, , referred the situation of the DRC to the ICC Prosecutor in 2004.35 The issue of sexual and gender-based violence was extensively discussed during the Ntaganda case. It was in this case, that the Appeals Chamber of the ICC ruled that “rape and sexual slavery of child soldiers were war crimes under the Rome Statute, even when the perpetrators and victims belonged to the same armed group”.36 But why was the issue of sexual violence so broadly addressed in the Ntaganda case? In what context was the case brought before the International Criminal Court in the Hague? In order to understand the widespread (sexual) violence in the ongoing Congo conflict, some background knowledge about Congo’s history needs to be provided. Consequently, this chapter will briefly discuss the First and Second Congo war before turning to the ongoing conflict in the DRC and its excessive sexual violence. Subsequently, three theories will be provided which all offer a different explanation for the prevalence of sexual violence during armed conflict. Finally, I will examine how the Ntaganda case relates to the other DRC cases heard before the ICC.

1.1 The long history of violence within the Democratic Republic of the Congo From the 1980’s onwards, the DRC and the rest of the African continent were about to witness the emergence of a completely new type of conflict. These ‘new’ wars were launched by “reform rebels” who stood up against African rulers, who they found to be corrupt or repressive. They aimed to bring about true economic, social and political transformation by waging their ‘revolutionary warfare’.37 Following this development, it became a popular strategy for African leaders to sponsor rebel movements, which targeted indigenous African rules they considered to be corrupt and repressive. The goal, however, was not to conquer an opponent’s territory, but to overthrow a rival regime. Consequently, African leaders feared

31 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.656 32 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.666-667 33 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.665 34 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.665 35 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.682 36 Jennifer Tridgell, Prosecutor v. Ntaganda: The end of Impunity for Sexual Violence against Child Soldiers, Australian International Law Journal, (2017). p.153 37 Christopher Williams, Explaining the Great War in Africa: How Conflict in the Congo became a Continental Crisis, The Fletcher Forum of World Affairs, (Summer 2013). p.85 7 the end of their regime more than the loss of territory as the regime of many African leaders was jeopardized by such rebel movements.38 The success of these campaigns, however, led to the spread of armed conflict instead of a long lasting peace in Africa.39 For the DRC, the misery began in 1994, with the start of the genocide in neighboring country Rwanda. On the 6th of April, the Rwandan president Habyarimana was killed in a plane crash. Following his death, the Rwandan state-sponsored radio, Mille Collines, ordered that all , a minority group in Rwanda, would be killed, as they were blamed for the crash.40 In the space of 100 days, approximately 800,000 Tutsis and moderate were killed.41 The genocide was terminated when the -led Rwandan Patriotic Front (RPF) intervened. The RPF conquered the capital and ousted the government. Following their defeat, 1.2 million Hutus, including approximately 40,000 militia42 of the Rwandan Armed Forces43 (FAR), responsible for the genocide fled to the DRC as they feared Tutsi reprisal.44 The majority of the Rwandan refugees ended up in north and south Kivu. This migration flow created new conflicts, as the Congolese Tutsis were now targeted by an alliance of the Rwandan Hutus now in the Kivus and the local Congolese Mai Mai groups.45 In addition, Mobutu, Congo’s president, used the presence of the Rwandan Hutus to instigate hostilities towards the Banyamulenge, an ethnic group of people of Tutsi origin that had lived in eastern Congo for generations. Now, they suddenly lost their citizenship and were forced to leave their homes. Consequently, the Banyamulenge turned to the Rwandan Tutsis for support.46 The FAR, on its turn, used the Congolese border area to regroup, rearm and prepare itself to reclaim its power in Rwanda.47 The Hutu militia soon became a serious threat for the Rwandan government, as it was supported by Mobutu.48 In the meantime, the Congolese Tutsis continued to be attacked in their own country. Consequently, the Rwandan government decided that it could no longer stand by and started to support the Congolese Tutsis.49 In September 1996, the Banyamulenge and the RPF jointly attacked the Hutu refugee camps in the DRC.50 The Rwandan invasion marked the beginning of the First Congo War.51

38 Christopher Williams, Explaining the Great War in Africa: How Conflict in the Congo became a Continental Crisis, The Fletcher Forum of World Affairs, (Summer 2013). p.85 39 Christopher Williams, Explaining the Great War in Africa: How Conflict in the Congo became a Continental Crisis, The Fletcher Forum of World Affairs, (Summer 2013). p.85 40 Alette Smeulers & Lotte Hoex, Studying the Microdynamics of the , The British Journal of Criminology, (2010). p.435 41 Christopher Williams, Explaining the Great War in Africa: How Conflict in the Congo became a Continental Crisis, The Fletcher Forum of World Affairs, (Summer 2013). p.86-87 42 Ola Olsson & Heather Congdon Fors, Congo: The Prize of Predation, Journal of Peace Research, (2004). p.324 43 Christopher Williams, Explaining the Great War in Africa: How Conflict in the Congo became a Continental Crisis, The Fletcher Forum of World Affairs, (Summer 2013). p.86 44 Ola Olsson & Heather Congdon Fors, Congo: The Prize of Predation, Journal of Peace Research, (2004). p.324 45 Christopher Williams, Explaining the Great War in Africa: How Conflict in the Congo became a Continental Crisis, The Fletcher Forum of World Affairs, (Summer 2013). p.87 46 Ola Olsson & Heather Congdon Fors, Congo: The Prize of Predation, Journal of Peace Research, (2004). p.324 47 Christopher Williams, Explaining the Great War in Africa: How Conflict in the Congo became a Continental Crisis, The Fletcher Forum of World Affairs, (Summer 2013). p.87 48 Ola Olsson & Heather Congdon Fors, Congo: The Prize of Predation, Journal of Peace Research, (2004). p.324 49 Christopher Williams, Explaining the Great War in Africa: How Conflict in the Congo became a Continental Crisis, The Fletcher Forum of World Affairs, (Summer 2013). p.87 50 Ola Olsson & Heather Congdon Fors, Congo: The Prize of Predation, Journal of Peace Research, (2004). p.324 51 Christopher Williams, Explaining the Great War in Africa: How Conflict in the Congo became a Continental Crisis, The Fletcher Forum of World Affairs, (Summer 2013). p.87 8

The Rwandan Army soon found itself caught in battles with the Congolese government forces.52 Consequently, the mission of Rwanda’s Army came to include the overthrow of Mobutu’s regime as well.53 The Rwandan Army was thereby supported by multiple anti- Mobutu rebel groups.54 Moreover, Mobutu’s overthrow was widely supported by other African nations. This was due to the fact that Congo was the ‘safe haven’ for a considerable number of rebel groups, which were among others fighting against , Angola, Burundi and Rwanda.55 In order to legitimize their invasion56, both Rwanda and Uganda began to provide their support to Kabila’s rebel group57, the Alliances des Forces Democratiques pour la Liberacion du Congo (AFDL). The AFDL was popular among the Congolese population, which resented their current president. In addition, it got the support of the vast majority of the African nations,58 In May 1997, Kabila and his troops took over Kinshasa.59 Mobutu fled the country and Laurent Kabila became Congo’s new president.60 However, it didn’t remain peaceful for long within the DRC, as the presidents of Rwanda and Uganda quickly came back on their decision to support Kabila.61 In August 1998, the Rassemblement Congolais pour la Démocratie (RCD), which was supported by Ugandan, Burundian and Rwandan armies, started a war to displace Kabila’s regime.62 However, the direct intervention of these three countries proved to be unsuccessful63, as Kabila, was supported by Chad, Angola, Namibia and Zimbabwe.64 The Angolan troops successfully held off the Rwandan-Ugandan forces in the Lower Congo.65 Therefore, the Ugandan and Rwandan governments decided to switch to a different strategy as they began to provide support to anti-government rebel groups that were situated in eastern DRC.66 However, due to different economic interests, Rwanda and Uganda each started to support their own rebel groups. Uganda supported the Front de Liberation du Congo (FLC), which was led by Jean Pierre Bemba. The FLC occupied the northern part of the DRC. The Rwandans, on their turn, supported the RCD, which maintained control over the eastern region. Consequently, the Congolese government forces controlled the southern and western

52 Ola Olsson & Heather Congdon Fors, Congo: The Prize of Predation, Journal of Peace Research, (2004). p.324 53 Christopher Williams, Explaining the Great War in Africa: How Conflict in the Congo became a Continental Crisis, The Fletcher Forum of World Affairs, (Summer 2013). p.87 54 Ola Olsson & Heather Congdon Fors, Congo: The Prize of Predation, Journal of Peace Research, (2004). p.324 55 Christopher Williams, Explaining the Great War in Africa: How Conflict in the Congo became a Continental Crisis, The Fletcher Forum of World Affairs, (Summer 2013). p.87 56 Christopher Williams, Explaining the Great War in Africa: How Conflict in the Congo became a Continental Crisis, The Fletcher Forum of World Affairs, (Summer 2013). p.87 57 Dennis Dijkzeul, Healing Governance? Four Health NGOs in War-Torn Eastern Congo, Journal of International Affairs, (fall 2003). p.184-185 58 Christopher Williams, Explaining the Great War in Africa: How Conflict in the Congo became a Continental Crisis, The Fletcher Forum of World Affairs, (Summer 2013). p.87 59 Dennis Dijkzeul, Healing Governance? Four Health NGOs in War-Torn Eastern Congo, Journal of International Affairs, (fall 2003). p.185 60 Ola Olsson & Heather Congdon Fors, Congo: The Prize of Predation, Journal of Peace Research, (2004). p.324-325 61 Christopher Williams, Explaining the Great War in Africa: How Conflict in the Congo became a Continental Crisis, The Fletcher Forum of World Affairs, (Summer 2013). p.88 62 Dennis Dijkzeul, Healing Governance? Four Health NGOs in War-Torn Eastern Congo, Journal of International Affairs, (fall 2003). p.185 63 Sara Meger, Rape of the Congo: Understanding Sexual Violence in the Conflict in the Democratic Republic of Congo, Journal of Contemporary African Studies, (20 May 2010). p.125 64 Dennis Dijkzeul, Healing Governance? Four Health NGOs in War-Torn Eastern Congo, Journal of International Affairs, (fall 2003). p.185 65 Christopher Williams, Explaining the Great War in Africa: How Conflict in the Congo became a Continental Crisis, The Fletcher Forum of World Affairs, (Summer 2013). p.89 66 Sara Meger, Rape of the Congo: Understanding Sexual Violence in the Conflict in the Democratic Republic of Congo, Journal of Contemporary African Studies, (20 May 2010). p.125 9 regions of the DRC. In the meantime, the eastern parts of the DRC and Rwanda continued to be destabilized by the Interahamwe.67 In order to defend their local territory from the various actors involved in the conflict, community-based rebel groups (the Mai Mai) were established.68 These groups were also active in FLC- and RCD- held territory. Gradually, the Mai Mai evolved into armed bandits that began to actively engage in the conflict. As the conflict advanced, the different warring factions and their international supporters came to be more interested in the economic exploitation of the Congolese minerals, than in ending the war. Consequently, it became increasingly unclear who was fighting whom. Soon the Congolese war consisted of “dozens of overlapping micro-wars in which almost all the victims were civilians“.69 In January 2001, Joseph Kabila came to power after the assassination of his father and former president, Laurent Kabila. He aimed to reinstate democracy in the Congo and wanted to find a solution to the conflict.70 The conflict officially ended in 2003, when a transitional government was installed, which included the DRC’s major rebel factions. By then, more than five million people had died during the war, making it the deadliest conflict since World War II. Consequently, the Second Congo war is often referred to as ‘Africa’s World War’ or the ‘Great African War’.71 1.2 The Ongoing Conflict and its Excessive Sexual Violence The peace accords, however, could not guarantee Kabila’s ability to effectively control the territory of Eastern Congo.72 In the period following the peace accords, a so-called ‘low intensity’ conflict continued in the provinces of , South Kivu and Ituri.73 The area is plagued by chaos and instability as rebel groups push forward and retreat over and over again. The Congolese government is unable or unwilling to maintain control over the situation, as some of its own representatives are participating in the atrocities. The violence is localized into small areas, as rebel groups are unable to expand their power over large territories.74 According to Deuitch, the DRC conflict is unique as the primary reason for its continuation is Congo’s resource richness. Unlike resource-poor states, the Congolese rebel groups and militia have something to fight over.75 Congo’s neighboring countries also wish to gain control over Congo’s highly valuable and easily appropriable natural resources.76 It is claimed that Rwanda and Uganda are extracting and transporting diamonds and other minerals out of Eastern DRC till this day. While their sponsored conflict is ongoing, both countries profit enormously from their participation in the conflict.77

67 Dennis Dijkzeul, Healing Governance? Four Health NGOs in War-Torn Eastern Congo, Journal of International Affairs, (fall 2003). p.185 68 Sara Meger, Rape of the Congo: Understanding Sexual Violence in the Conflict in the Democratic Republic of Congo, Journal of Contemporary African Studies, (20 May 2010). p.125 69 Dennis Dijkzeul, Healing Governance? Four Health NGOs in War-Torn Eastern Congo, Journal of International Affairs, (fall 2003). p.185 70 Ola Olsson & Heather Congdon Fors, Congo: The Prize of Predation, Journal of Peace Research, (2004). p.326-327 71 Lars Huening, Explaining the Congo Wars, African Historical Review, (31 March 2010). p.130 72 Dennis Dijkzeul, Healing Governance? Four Health NGOs in War-Torn Eastern Congo, Journal of International Affairs, (fall 2003). p.186 73 Noah K. Tenai, Impoverishing and dehumanising Violence against Women: An Opportunity for Service by Churches in Eastern Democratic Republic of Congo, Verbum et Ecclesia, (31 January 2017). p.2 74 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.663 75Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.663 76 Ola Olsson & Heather Congdon Fors, Congo: The Prize of Predation, Journal of Peace Research, (2004). p.321 77 Noah K. Tenai, Impoverishing and dehumanising Violence against Women: An Opportunity for Service by Churches in Eastern Democratic Republic of Congo, Verbum et Ecclesia, (31 January 2017). p.2 10

The death toll from 1998 to 2007 alone is estimated at 5.4 million.78 Moreover, hundreds of thousands of people have been displaced due to the ongoing violence. What’s worse, according to Huening, is the fact that mass rape has turned into an everyday mode of violence and intimidation, practiced by various militias.79 The Congolese women find themselves as collateral damage in the ongoing conflict between the DRC soldiers on the one side and the Uganda-and Rwanda-sponsored militia on the other.80

2.1 Sexual Violence in the Democratic Republic of the Congo The ongoing conflict in the DRC illustrates that sexual violence is still very much a serious issue in our modern age. Eastern Congo remains to be a scene of mass rape, as women continue to be the victim of sexual violence within the context of the ongoing conflict.81 The continued insecurity and the near constant conflict has provided many opportunities for the military, militia and the official government to commit crimes of sexual violence.82 Eastern DRC is often referred to as ‘the rape capital of the world’83 as “some of the world’s most horrific documented cases of sexual violence against women” take place there.84 It should be noted that sexual violence is much more than just rape. As Tenai acknowledges, sexual violence comprises “any act of gender-based violence, which results or may result in physical, sexual or psychological harm and suffering on the part of the female”85 or male. Crimes of rape are allegedly being committed by militarized non-government forces, armed forces and the police alike.86 Doctors Without Borders and observers have estimated that approximately 30% of the Congolese women are sexually mutilated.87 The sexual violence inherent to the DRC conflict is notorious for its brutality. Women and girls are gang raped by militia members and/or soldiers near their homes, in front of their families and out in the fields.88 The victims are “tortured before, during and after the rapes”, as noted by Carlsen.89 It turned into common practice to mutilate women’s vaginas with machetes, broken bottles, gun barrels, machetes or spears. On top of that there are instances where the victim was shot in the vagina following the rape. Other examples of the atrocities inflicted on the Congolese women include the cutting off of clitorises, breasts and vaginal lips with razor blades or machetes. Sons are being forced to rape their mothers and sisters and fathers are being forced to rape their daughters. If they disobey, they will be killed.90 The victims suffer from permanent injuries, unwanted pregnancies, HIV infections,

78 Birthe Steiner, Marie T Benner, Egbert Sondorp, et all, Sexual Violence in the protracted Conflict of DRC programming for Rape Survivors in South Kivu, Conflict and Health, (15 March 2009). p.2 79 Lars Huening, Explaining the Congo Wars, African Historical Review, (31 March 2010). p.130 80 Noah K. Tenai, Impoverishing and dehumanising Violence against Women: An Opportunity for Service by Churches in Eastern Democratic Republic of Congo, Verbum et Ecclesia, (31 January 2017). p.2 81 Noah K. Tenai, Impoverishing and dehumanising Violence against Women: An Opportunity for Service by Churches in Eastern Democratic Republic of Congo, Verbum et Ecclesia, (31 January 2017). p.2 82 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.663 83 Noah K. Tenai, Impoverishing and dehumanising Violence against Women: An Opportunity for Service by Churches in Eastern Democratic Republic of Congo, Verbum et Ecclesia, (31 January 2017). p.2 84 Erika Carlsen, Ra/pe and War in the Democratic Republic of the Congo, Peace Review, (12 November 2009). p.474 85 Noah K. Tenai, Impoverishing and dehumanising Violence against Women: An Opportunity for Service by Churches in Eastern Democratic Republic of Congo, Verbum et Ecclesia, (31 January 2017). p.1 86 Sara Meger, Rape of the Congo: Understanding Sexual Violence in the Conflict in the Democratic Republic of Congo, Journal of Contemporary African Studies, (20 May 2010). p.119 87 Erika Carlsen, Ra/pe and War in the Democratic Republic of the Congo, Peace Review, (12 November 2009). p.476 88 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.664 89 Erika Carlsen, Ra/pe and War in the Democratic Republic of the Congo, Peace Review, (12 November 2009). p.476 90 Erika Carlsen, Ra/pe and War in the Democratic Republic of the Congo, Peace Review, (12 November 2009). p.476 11 fistulas and the destruction of their reproductive organs.91 Sexual violence lowers the victim’s self-confidence and self-esteem and can give the victim a feeling of powerlessness.92 However, despite the excessive brutality and the tremendous amount of victims, impunity regarding sexual violence generally persists within the DRC.93 This can be attributed to multiple flaws in Congo’s legal system. To begin with, the military judges must be higher ranked than the accused who’s brought to justice. Consequently, commanders in Congo’s national army (FARDC) are practically untouchable. The FARDC commanders, on their turn, protect lower ranking soldiers from being prosecuted.94 Secondly, as Congo’s judicial system is underfunded, the costs for the legal proceedings are imposed on the victims. In the war- torn region of eastern Congo, families have barely enough money to survive. Consequently, victims of sexual violence cannot afford to bring the perpetrators to trial. Even those that are fortunate enough to bring their rapist to trial come across additional difficulties. High sentences remain the exception, as judges often declare that the woman is at fault for the rape.95 This led to a widespread belief among soldiers and civilian men that they can commit sexual violence crimes without consequence. Due to the continued impunity of the perpetrators, the Congolese population has lost confidence in the justice system.96 Apart from the malfunctioning legal system, many women waive from holding their rapists responsible for their actions out of fear for reprisal rapes or further violence. Rapists for example cut off the tongues and mouths of their victims so they ‘won’t tell again’ or re-rape them.97 Moreover, the majority of the rape survivors refuses to speak out of fear of social stigmatization or due to denial. The victims that do report the sexual violence tend to do so months or even years later.98 2.2 Explanations for the Excessive Sexual Violence in the DRC? The fact that excessive sexual violence is inherent in the ongoing conflict in the DRC is indisputable. However, the underlying reasons therefore are not. The Opportunistic Sexual Violence Theory, the Strategic Violence Theory and the Patriarchal Militarism Theory each provide another explanation for the widespread sexual violence during times of conflict. These theories could offer some insight into the brutality of the sexual violence inherent to the DRC conflict. To begin with, the Opportunistic Sexual Violence theory holds that combatants use sexual violence as a means to establish control over lucrative resources to ensure their own economic survival. Applying this theory to the ongoing conflict in the DRC, one finds that soldiers and rebel forces are indeed among the poorest of Congo’s society. They are generally underpaid if they are even paid at all and usually have little to no economic opportunities.99 Consequently, armed combatants use rape to steal women’s material and

91 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.664 92 Noah K. Tenai, Impoverishing and dehumanising Violence against Women: An Opportunity for Service by Churches in Eastern Democratic Republic of Congo, Verbum et Ecclesia, (31 January 2017). p.2 93 Sara Meger, Rape of the Congo: Understanding Sexual Violence in the Conflict in the Democratic Republic of Congo, Journal of Contemporary African Studies, (20 May 2010). p.127 94 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.666 95 Erika Carlsen, Ra/pe and War in the Democratic Republic of the Congo, Peace Review, (12 November 2009). p.476 96 Sara Meger, Rape of the Congo: Understanding Sexual Violence in the Conflict in the Democratic Republic of Congo, Journal of Contemporary African Studies, (20 May 2010). p.128 97 Erika Carlsen, Ra/pe and War in the Democratic Republic of the Congo, Peace Review, (12 November 2009). p.476 98 Birthe Steiner, Marie T Benner, Egbert Sondorp, et all, Sexual Violence in the protracted Conflict of DRC programming for Rape Survivors in South Kivu, Conflict and Health, (15 March 2009). p.2 99 Erika Carlsen, Ra/pe and War in the Democratic Republic of the Congo, Peace Review, (12 November 2009). p.478 12 productive goods.100 Within the DRC, it is the women who carry out the tasks that are critical for the survival of the family and the community. They are the nurturers, caregivers and workers for their communities.101 Consequently, it is their socio-economic position that makes them the prime target for militias and military groups.102 They are needed by rebel groups to perform their domestic and agricultural services.103 The Strategic Violence Theory, on the other hand, holds that sexual violence is used to accomplish strategic objectives.104 Rape is a strategy that is used to control, terrorize, displace and even eliminate entire communities. It is often accompanied by mutilation, torture, slavery and sometimes even cannibalism.105 In addition, sexual violence can also be used to punish a (newly conquered or reconquered) community for its supposed loyalty to other forces.106 As acknowledged by Deuitch, rape is thus used as a weapon of war.107 The Patriarchal Militarism Theory108 provides yet another explanation, as it argues that soldiers choose to engage in sexual violence because they strive to prove their masculinity to their fellow soldiers.109 Military institutions tend to encourage physical and violent forms of masculinity to the point where masculinity becomes associated with a willingness and ability to commit violence.110 Moreover, it could be argued that Congo’s patriarch hierarchical system contributes to the extreme sexual violence as well. Congo’s society is organized in such a manner that the power and social value in the political, social and cultural institutions is “disproportionally endowed upon men as a group at the expense of women as a group”.111 As a result, oppressive and ‘anti-women’ behavior is ordinarily rewarded by the system rather than condemned.112 Consequently, as stated by Deuitch, “sexual violence is rarely reported, laws do not fully protect women, and the enforcement of laws to protect women is severely lacking”.113 All three theories seem to provide (part of) the explanation for the excessive sexual violence in times of armed conflict. Moreover, in the context of the ongoing conflict in the DRC all three theories seem to offer part of the explanation for the large scale sexual violence. As acknowledged by Carlsen, much of the sexual violence in the DRC is economically motivated.114 Within the conflict area of eastern DRC, women are often targeted in ‘massively greater numbers than men’ due to their access to resources in the informal and formal

100 Erika Carlsen, Ra/pe and War in the Democratic Republic of the Congo, Peace Review, (12 November 2009). p.477 101 Noah K. Tenai, Impoverishing and dehumanising Violence against Women: An Opportunity for Service by Churches in Eastern Democratic Republic of Congo, Verbum et Ecclesia, (31 January 2017). p.2 102 Erika Carlsen, Ra/pe and War in the Democratic Republic of the Congo, Peace Review, (12 November 2009). p.478 103 Erika Carlsen, Ra/pe and War in the Democratic Republic of the Congo, Peace Review, (12 November 2009). p.478 104 Erika Carlsen, Ra/pe and War in the Democratic Republic of the Congo, Peace Review, (12 November 2009). p.479 105 Noah K. Tenai, Impoverishing and dehumanising Violence against Women: An Opportunity for Service by Churches in Eastern Democratic Republic of Congo, Verbum et Ecclesia, (31 January 2017). p.2 106 Erika Carlsen, Ra/pe and War in the Democratic Republic of the Congo, Peace Review, (12 November 2009). p.479 107 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.664 108 Erika Carlsen, Ra/pe and War in the Democratic Republic of the Congo, Peace Review, (12 November 2009). p.480 109 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.664 110 Sara Meger, Rape of the Congo: Understanding Sexual Violence in the Conflict in the Democratic Republic of Congo, Journal of Contemporary African Studies, (20 May 2010). p.121 111 Sara Meger, Rape of the Congo: Understanding Sexual Violence in the Conflict in the Democratic Republic of Congo, Journal of Contemporary African Studies, (20 May 2010). p.121 112 Sara Meger, Rape of the Congo: Understanding Sexual Violence in the Conflict in the Democratic Republic of Congo, Journal of Contemporary African Studies, (20 May 2010). p.121 113 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.668 114 Erika Carlsen, Ra/pe and War in the Democratic Republic of the Congo, Peace Review, (12 November 2009). p.477 13 economy.115 However, also the Strategic Violence Theory seems to hold as sexual violence, within the context of the ongoing conflict, is often used to terrorize communities and to undermine their sense of security and cohesion. Therefore, Carlsen argues that the sexual violence within the DRC is also motivated by the fulfillment of strategic objectives.116 Moreover, also the Patriarchal Militarism Theory appears to offer a viable explanation for the large scale sexual violence. Carlsen even argues that “the patriarchal military apparatus is directly responsible for the sexual violence in the DRC”.117 The underlying reason(s) for the sexual violence put aside, fact is that the horrible crimes of sexual violence, committed by all parties engaging in the ongoing DRC conflict, exploit core themes of family, identity, honor and shame.118 The Congolese women are generally considered to be the nurtures, caregivers and workers of the community119 and their bodies “physically and symbolically provide the backbone of their communities”.120 Consequently, by raping the women, the soldiers and combatants figuratively rape and destroy the community and the nation.121 3.1 The International Criminal Court Reading about the horrors inflicted on the Congolese women, it is rather surprising that the conflict is generally unknown in the western world. The brutality of the excessive sexual violence is undeniable, but still the West pays little attention to the conflict. The ICC however, does play a role in the adjudication of some of Congo’s most notorious warlords, as the situation of the DRC was referred to the ICC by Congo’s president on 3 March 2004.122 Today, four cases regarding the DRC conflict have been heard before the ICC. But why did the ICC, which is located so far away from the DRC, get involved in the adjudication of these felons? How did these cases end up before the ICC and why were these not addressed by the judicial system in the DRC? To understand the involvement of the ICC, some background information about the court and its trigger mechanisms. The international Criminal Court was created on the 17th of July in 1998.123 The drafters of the Rome Statute, laid down in its preamble that “the most serious crimes of concern to the international community as a whole must not go unpunished”.124 The Rome Statute was adopted by 120 states and125 entered into force on 1 July 2002. This date marks the establishment of the world’s first permanent international criminal tribunal. The creation of the ICC was the result of the international aspiration to end the worldwide cycle of impunity of (core) international crimes. The ICC has jurisdiction over crimes against humanity, war crimes and genocide.126 On the 17th of July in 2018, the ICC’s jurisdiction on the crime of

115 Erika Carlsen, Ra/pe and War in the Democratic Republic of the Congo, Peace Review, (12 November 2009). p.478-479 116 Erika Carlsen, Ra/pe and War in the Democratic Republic of the Congo, Peace Review, (12 November 2009). p.479 117 Erika Carlsen, Ra/pe and War in the Democratic Republic of the Congo, Peace Review, (12 November 2009). p.480 118 Sara Meger, Rape of the Congo: Understanding Sexual Violence in the Conflict in the Democratic Republic of Congo, Journal of Contemporary African Studies, (20 May 2010). p.123 119 Noah K. Tenai, Impoverishing and dehumanising Violence against Women: An Opportunity for Service by Churches in Eastern Democratic Republic of Congo, Verbum et Ecclesia, (31 January 2017). p.2 120 Erika Carlsen, Ra/pe and War in the Democratic Republic of the Congo, Peace Review, (12 November 2009). p.479 121 Erika Carlsen, Ra/pe and War in the Democratic Republic of the Congo, Peace Review, (12 November 2009). p.479 122 Håkan Friman, The International Criminal Court: Investigations into Crimes committed in the DRC and Uganda. What is next?, African Security Studies, (2004). p.21 123 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.670 124 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda, (Sentencing Judgment), (7 November 2019), ICC-01/04-02/06, p.8 125 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.670-671 126 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.85

14 aggression was activated as well.127 The ICC therewith acquired jurisdiction over all four ‘core international crimes’.128 Only the gravest cases of international crimes will be heard before the ICC. Nevertheless, the power of the ICC is not unlimited as it has to reckon with the notion of jurisdiction.129 The court has temporal jurisdiction for crimes which have been committed after the Rome Statute entered into force (1 July 2002). Moreover, the court’s territorial jurisdiction is limited to crimes committed on the territory of a State party, crimes committed by a State Party national and crimes for which a non-State Party accepts the court’s jurisdiction.130 However, in general, a case concerning one or more of the core international crimes is admissible before the ICC when the national authorities are neither investigating nor prosecuting the crimes in question. This inactivity can be ascribed to national authorities being either unwilling or unable to genuinely administer such investigation or prosecution.131 Under the Rome Statute, there are three options available to bring a case before the ICC. To begin with, the UN Security Council may refer a situation to the ICC.132 Article 13(b) of the ICC Statute holds that “the ICC can exercise jurisdiction over a situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the ”.133 Secondly, a State Party itself can decide to refer a case to the ICC. This right is laid down in article 14(1) of the Rome Statute, which states that “a state party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes”.134 Thus, in a situation of self-referral, the entire situation is referred to the ICC. Hence a State party won’t investigate nor attempt to prosecute the international crimes committed within its territory.135 Finally, the ICC Prosecutor may decide to start an investigation proprio motu, thus without either UN Security Council referral or State Party referral. The investigation is then based on information the court received from organizations or individuals. However, in order to investigate proprio motu, the Prosecutor needs to be able to demonstrate to an ICC pre-Trial Chamber that there is ‘a reasonable basis to proceed’.136 In general, post-conflict societies do not have the required resources available to bring those accused of serious international crimes to justice.137 This was also the case with the DRC. Consequently, Joseph Kabila referred the situation in the DRC to the ICC on the 3rd of March in 2004. An agreement was reached, in which it was laid down that the leaders with the greatest responsibility for the core international crimes committed in the DRC would be targeted by the ICC. The national authorities of the ICC would deal with the other perpetrators.138

127 Claus Kreβ, On the Activation of ICC Jurisdiction over the Crime of Aggression, Journal of International Criminal Justice, (2018). p.15 128 Art. 5, Rome Statute of the International Criminal Court 129 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.72 130 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.671 131 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.85 132 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.106 133 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.106 134 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.108 135 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.109 136 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.106 137 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.86 138 Håkan Friman, The International Criminal Court: Investigations into Crimes committed in the DRC and Uganda. What is next?, African Security Studies, (2004). p.21 15

Kabila’s self-referral illustrates that the situation in eastern DRC got so out of hand that the Congolese government was simply unable to solve the ongoing conflict itself. When the DRC ratified the Rome Statute on the 11th of April in 2002139, it gave its consent to be bound by the jurisdiction and accepted law of the ICC. By referring the situation to the ICC, Kabila consented to ICC involvement.140 3.2 Ntaganda’s role in the DRC conflict Following Congo’s self-referral, the Prosecutor of the ICC opened investigations into the situation in Eastern DRC. In 2006, Thomas Lubanga was the first warlord for whom an arrest warrant was issued. The former president of the Union des Patriotes Congolais (UPC)141 was found “guilty of the crimes of conscripting and enlisting children under the age of fifteen years into the FPLC and using them to participate actively in hostilities”.142 Subsequently, Lubanga was sentenced to 14 years’ imprisonment.143 was the second warlord to be arrested by the ICC in October 2007.144 The Chamber held that there was reasonable ground to believe that the members of the FPRI had committed several counts of crimes against humanity and war crimes.145 Being the former leader of the Patriotic Resistance Force in Ituri (FPRI)146, the Court reasoned that Katanga was essential in the commission of these crimes. Therefore, Katanga was charged with six counts of war crimes and three counts of crimes against humanity.147 The ICC found him guilty “as an accessory to the crimes committed on 24 February 2003 of: murder as a crime against humanity, murder as a war crime, attack against a civilian population as such or against individuals not taking direct part in hostilities as a war crime, destruction of enemy property as a war crime and pillaging as a war crime”.148 Contrary to Lubanga, Katanga was not found guilty of the war crime of “using children under the age of 15 years to participate actively in hostilities”.149 On 23 May 2014, Katanga was sentenced to 12 years’ imprisonment150, for complicity in murders and attacks on civilians.151 On the 6th of July 2007, the ICC sent out a third arrest-warrant relating to the DRC conflict. This one was meant for ,152 as the ICC had reasonable grounds to believe that Chui, as the highest ranking officer of the National Integrationist Front (FNI), played an essential part in the crimes committed by that group.153 Katanga was allegedly an ally of the FNI.154 Consequently, Chui was charged with the same counts of war crimes and

139 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.681 140 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.682 141 Cecile Aptel & Wambui Mwangi, Developments in International Criminal Justice in Africa during 2008, African Human Rights Law Journal, (2009). p.277 142 ICC, Trial Chamber I, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Thomas Lubanga, Dyilo, (14 March 2012), ICC- 01/04-01/06, p.591, §1358 143 ICC, Trial Chamber I, Decision on Sentence Pursuant to Article 76 of the Statute, (10 July 2012), ICC-01/04-01/06 144 Cecile Aptel & Wambui Mwangi, Developments in International Criminal Justice in Africa during 2008, African Human Rights Law Journal, (2009). p.280 145 Dov Jacobs & Noora Arajärvi, The International Criminal Court, The Law and Practice of International Courts and Tribunals, (2008). p.157 146 Cecile Aptel & Wambui Mwangi, Developments in International Criminal Justice in Africa during 2008, African Human Rights Law Journal, (2009). p.280 147 Dov Jacobs & Noora Arajärvi, The International Criminal Court, The Law and Practice of International Courts and Tribunals, (2008). p.157 148 ICC, Trial Chamber II, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Germain Katanga, (7 March 2014), ICC-01/04- 01/07, chapter XII, p.658-659 149 ICC, Trial Chamber II, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Germain Katanga, (7 March 2014), ICC-01/04- 01/07, chapter XII, p.659 150 ICC, (13 November 2015), Germain Katanga’s sentence reduced and to be completed on 18 January 2016 151 Anna Kuniewicz, Case: International Criminal Prosecutor v. Bosco Ntaganda, Chicago-Kent Journal of International and Comparative Law, (2015). p.5 152 Dov Jacobs & Noora Arajärvi, The International Criminal Court, The Law and Practice of International Courts and Tribunals, (2008). p.158 153 Dov Jacobs & Noora Arajärvi, The International Criminal Court, The Law and Practice of International Courts and Tribunals, (2008). p.158 154 Cecile Aptel & Wambui Mwangi, Developments in International Criminal Justice in Africa during 2008, African Human Rights Law Journal, (2009). p.280 16 crimes against humanity as Katanga.155 However, he was acquitted of seven counts of war crimes “(using children under the age of 15 to take active part in the hostilities, directing an attack against a civilian population as such or against individual civilians not taking direct part in hostilities, wilful killing, destruction of property, pillaging, sexual slavery and rape)” and three counts of crimes against humanity “(murder, rape and sexual slavery)”.156 On the 29th of April 2008, the ICC sent out a fourth and last-arrest warrant related to the ICC conflict.157 This arrest warrant concerned Bosco Ntaganda and who herewith became the last one added to the list of notorious war criminals of the DRC conflict tried before the ICC. This is not entirely surprising considering Ntaganda’s violent past. In 2002, Ntaganda joined the Union of Congolese Patriots, which was then led by Thomas Lubanga.158 From 2002 to 2005, Ntaganda served as the Deputy Chief of Staff and as commander of Military Operations for the UPC.159 The forces of the UPC’s military wing, which was called the Forces Patriotiques pour la Libération du Congo (FPLC)160 repeatedly committed crimes against humanity and war crimes in the form of rape, torture and ethnic massacres under Ntaganda’s command. In addition, child soldiers as young as seven years old have been recruited and actively used by the forces under his command.161 In 2006, Ntaganda left the UPC and joined the National Congress for the Defense of the People (CNDP), where he ousted CNDP’s former leader and integrated the troops into Congo’s national army (FARDC).162 Ntaganda was promoted to the rank of General by president Kabila.163 As general of the FARC, Ntaganda controlled 50,000 soldiers. While in charge of the FARC soldiers, Ntaganda caused great damage in eastern DRC by looting, raping and murdering the local population. More than 800,000 have been displaced from their homes under his authority.164 In April 2012, the Congolese government made an effort to limit Ntaganda’s power, following persistent calls for his arrest. Subsequently, Ntaganda, together with Sultina Makenga, created a new rebel army (M23). Rwanda was quick to provide its support to M23, that “claimed to be protesting the DRC government’s failure to fully implement the March 23, 2009, peace agreement”.165 M23 split right before Ntaganda’s surrender, forcing him to flee across the border into Rwanda with approximately 700 other soldiers.166 In line with the previous DRC conflict-related cases, Ntaganda stood trial for the same violations as his compatriots.167 Ntaganda was charged with thirteen counts of war crimes

155 Dov Jacobs & Noora Arajärvi, The International Criminal Court, The Law and Practice of International Courts and Tribunals, (2008). p.158 156 ICC, (27 February 2015), Ngudjolo Chui case: ICC Appeals Chamber confirms the acquittal decision 157 Cecile Aptel & Wambui Mwangi, Developments in International Criminal Justice in Africa during 2008, African Human Rights Law Journal, (2009). p.280 158 Anna Kuniewicz, Case: International Criminal Prosecutor v. Bosco Ntaganda, Chicago-Kent Journal of International and Comparative Law, (2015). p.3 159 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.678 160 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.679 161 Anna Kuniewicz, Case: International Criminal Prosecutor v. Bosco Ntaganda, Chicago-Kent Journal of International and Comparative Law, (2015). p.3 162 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.679 163 Anna Kuniewicz, Case: International Criminal Prosecutor v. Bosco Ntaganda, Chicago-Kent Journal of International and Comparative Law, (2015). p.3 164 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.680 165 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.680 166 Anna Kuniewicz, Case: International Criminal Prosecutor v. Bosco Ntaganda, Chicago-Kent Journal of International and Comparative Law, (2015). p.3 167 Anna Kuniewicz, Case: International Criminal Prosecutor v. Bosco Ntaganda, Chicago-Kent Journal of International and Comparative Law, (2015). p.6 17 and five counts of crimes against humanity.168 The war crimes, amongst others, include attacking civilians, rape, murder, sexual slavery of civilians and child soldiers under the age of 15 years and using them to participate actively in hostilities, attacking civilians, etc.169 The fact that Ntaganda was charged with 6 charges of sexual violence, i.e. four counts of war crimes (rape, rape of child soldiers, sexual slavery of civilians, sexual slavery of child soldiers) and two counts of crimes against humanity (sexual slavery and rape) is quite remarkable.170 This illustrates that the ICC is eager to address sexual and gender-based offenses. On the 8th of July in 2019, Trial Chamber VI found Ntaganda guilty, beyond reasonable doubt of 18 counts of crimes against humanity and war crimes, committed in Ituri, in the period 2002-2003. Following this decision, he was sentenced to 30 years of imprisonment.171 3.3 The significance of the Ntaganda case As indicated by Deuitch, the DRC conflict is characterized by the nearly complete impunity enjoyed by both soldiers and civilians who commit sexually violent crimes. Within the borders of the Democratic Republic of the Congo, Ntaganda is well-known.172 In the last two and a half decades, Ntaganda gained a reputation as a rich warlord and a brutal commander.173 As emphasized by Deuitch, “Thousands upon thousands of women have been attacked because of Bosco Ntaganda; whether by his own hand, or those of his men, the fact remains that he is responsible for many victims”.174 Consequently, he is the perfect example to show the world that the international community is against sexual violence. Moreover, his case illustrates that an ongoing armed conflict is no longer tolerated as an excuse for such crimes. Although Ntaganda might have evaded prosecution during his time in the DRC, the ICC trial showed that even he cannot escape justice.175 When Ntaganda was sentenced to 30 imprisonment, his impunity finally came to an end. Moreover, Ntaganda’s trial can contribute to the deterrence of further crimes. It illustrates that even someone who once enjoyed much power and control cannot escape justice. From now on, every individual who incites or commits sexual violence during an (armed) conflict has to contemplate the risk of an ICC investigation, prosecution and sentence.176 Conclusion From 1994 onwards, the DRC has been suffering from multiple, contiguous armed conflicts. In the period 1998-2007 alone, approximately 5.4 million people have died due to the conflict.177 Moreover, hundreds of thousands of people have been displaced due to the ongoing violence.178 However, the DRC-conflict is most notorious for its sexual violence. “The

168 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.682 169 Anna Kuniewicz, Case: International Criminal Prosecutor v. Bosco Ntaganda, Chicago-Kent Journal of International and Comparative Law, (2015). p.6 170 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.682 171 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda, (7 November 2019), ICC- 01/04-02/06, p.117 172 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.682 173 Anna Kuniewicz, Case: International Criminal Prosecutor v. Bosco Ntaganda, Chicago-Kent Journal of International and Comparative Law, (2015). p.4 174 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.684 175 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.688 176 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.688 177 Birthe Steiner, Marie T Benner, Egbert Sondorp, et all, Sexual Violence in the protracted Conflict of DRC programming for Rape Survivors in South Kivu, Conflict and Health, (15 March 2009). p.2 178 Lars Huening, Explaining the Congo Wars, African Historical Review, (31 March 2010). p.130 18 scale of sexual violence being perpetrated in the DRC is unparalleled in any previous or current conflict”.179 The various armed groups involved in the conflict perceive rape as a particularly effective weapon to subdue, punish or extract revenge upon entire communities.180 Consequently, Eastern Congo is often referred to as ‘the rape capital of the world’.181 Nevertheless, impunity for the perpetrators of sexual violence has long prevailed,182 as the victims of sexual violence were confronted with Congo’s flawed legal system.183 In addition to the malfunctioning legal system, many victims waived from holding their rapists responsible for their actions out of fear for reprisal rapes or further violence.184 This was about to change when Joseph Kabila referred the situation in the DRC to the ICC on the 3rd of March in 2004.185 The president realized that Congo’s post-conflict society didn’t have the required resources available to bring those accused of serious international crimes (such as rape as a war crime or rape as a crime against humanity) to justice.186 The self-referral illustrates that the situation in eastern DRC got so out of hand that the Congolese government was simply unable to solve the ongoing conflict by itself.187 Consequently, the ICC got involved in the criminal proceedings of Congo’s major war criminals. During the Ntaganda trial, the ICC was eager to address the large scale sexual and gender-based offences committed during the conflict in Eastern Congo.188 The Ntaganda case was the perfect example to show the world that the international community is against sexual violence.189 The ICC found Ntaganda guilty of six charges of sexual violence.190 In doing so, the ICC proved to the Congolese that even someone who once had a powerful position cannot escape justice forever. It illustrates that “every individual who incites or commits sexual violence during an (armed) conflict has to contemplate the risk of an ICC investigation, prosecution and sentence”.191

179 Sara Meger, Rape of the Congo: Understanding Sexual Violence in the Conflict in the Democratic Republic of Congo, Journal of Contemporary African Studies, (20 May 2010). p.119 180 Erika Carlsen, Ra/pe and War in the Democratic Republic of the Congo, Peace Review, (12 November 2009). p.479 181 Noah K. Tenai, Impoverishing and dehumanising Violence against Women: An Opportunity for Service by Churches in Eastern Democratic Republic of Congo, Verbum et Ecclesia, (31 January 2017). p.2 182 Sara Meger, Rape of the Congo: Understanding Sexual Violence in the Conflict in the Democratic Republic of Congo, Journal of Contemporary African Studies, (20 May 2010). p.127 183 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.666 184 Erika Carlsen, Ra/pe and War in the Democratic Republic of the Congo, Peace Review, (12 November 2009). p.476 185 Håkan Friman, The International Criminal Court: Investigations into Crimes committed in the DRC and Uganda. What is next?, African Security Studies, (2004). p.21 186 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.106 187 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.681 188 ICC, Trial Chamber VI, (7 November 2019), Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda, ICC-01/04- 02/06, p.117 189 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.688 190 ICC, Trial Chamber VI, (7 November 2019), Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda, ICC-01/04- 02/06, p.117 191 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.688 19

Chapter 3: War Crimes and Crimes against Humanity

The ongoing Congo conflict illustrates once more that rape and sexual violence are still routinely used against women in armed conflict. However, little attention has been paid to this phenomenon historically,192 but this drastically changed in the 1990s, with the establishment of the international criminal tribunals (the ICTR and the ICTY).193 Moreover, the first permanent international court was established with the creation of the International Criminal Court (ICC). The ICC only tries the gravest of crimes and should thus be regarded as a court of last resort. It is laid down in Article 5 of the Rome Statute that war crimes, crimes of aggression, genocide and crimes against humanity fall within the jurisdiction of the ICC.194 In this chapter, I would like to elaborate on two of these four ‘core’ international crimes. As discussed in the previous chapter, the ICC charged Ntaganda with thirteen counts of war crimes and five counts of crimes against humanity. Among these were 6 charges of sexual violence, i.e. four counts of war crimes (rape, rape of child soldiers, sexual slavery of civilians and sexual slavery of child soldiers) and two counts of crimes against humanity (sexual slavery and rape).195 But what exactly are war crimes and what are crimes against humanity? I aim to provide a thorough answer to these questions in this chapter. In order to do so, I will first provide a brief overview of the ‘Elements of Crimes’ to clarify which elements must be met before conduct will be classified as a crime. Then I will discuss all the elements of ‘war crimes’ required by the ICC Statute. Thereafter, I will do the same for ‘crimes against humanity’. 3.1 The elements of crimes In its general part, the Rome Statute of the ICC has incorporated two provisions which are relevant with regard to the four ‘core’ international crimes over which the ICC has jurisdiction.196 It is laid down in the ‘Elements of Crimes’ sections of what elements a crime consists. It can be derived from the ‘Elements of Crimes’ that a crime is “made up of a combination of material elements with defined mental elements attached to each”.197 To begin with, the material element(s) of a crime is the physical conduct, which can be either an act or omission, that is prohibited by a rule of international criminal law. Three features (conduct, consequences and circumstances) concerning the material element of a crime are included in the Rome Statute.198 The conduct concerns the “prohibited action or omission

192 Kas Wachala, The Tools to combat the War on Women’s Bodies: Rape and Sexual Violence against Women in Armed Conflict, The International Journal of Human Rights, (2012). p.533 193 Sergey Y. Marochkin & Galina A. Nelaeva, Rape and Sexual Violence as Torture and Genocide in the Decisions of International Tribunals: Transjudicial Networks of International Criminal Law, Human Rights Review, (8 July 2014). p.476 194 Kas Wachala, The Tools to combat the War on Women’s Bodies: Rape and Sexual Violence against Women in Armed Conflict, The International Journal of Human Rights, (2012). p.542-543 195 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.682 196 Rogers S. Clark., The Mental Element in International Criminal Law: the Rome Statute of the International Criminal Court and the Elements of Offences, Criminal Law Forum, (2001). p.291 197 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.184 198 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.187 20 that is described in the definition of a crime”.199 Consequences, on the other hand, “can refer either to a completed result, such as the causing of death, or the creation of a state of harm or risk of harm, such as endangerment”. 200 Thirdly there’s the element of ‘circumstances’, which describes “a state of affairs that must exist for conduct to be considered criminal”.201 It should be noted, however, that a different mental state can be attached to each of these elements separately.202 However, for conduct to be classified as criminal, the prohibited act (i.e. the material element) needs to be accompanied by a ‘guilty or culpable mental state’ (the mental element).203 This general standard can be derived from article 30(1) of the Rome Statute, which holds that “unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge”.204 So in most cases, the elements of ‘knowledge’ and ‘intent’ need to be proven. However, it should be noted that the Statute also entails provisions in which a lower or higher mental element might be required for a particular offense.205 In order to fully comprehend the general mental requirement laid down in article 30(1) of the Rome Statute, some attention has to be attributed to the concepts of ‘intent’ and ‘knowledge’. Article 30(2) of the ICC Statute holds that “a person has intent where in relation to the conduct, that person means to engage in the conduct or where in relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events”.206 So the individual wants to commit the act and wants the concomitant consequence to happen. Article 30(3) of the Rome Statute holds that a person has knowledge when that person is aware “that a circumstance exists or a consequence will occur in the ordinary course of events”.207 The existence of both ‘intent’ and ‘knowledge’ have to be inferred from the relevant facts and circumstances inherent to the case.208 3.2 War Crimes Both the mental and material elements mentioned in the previous paragraph are inherent in all the great breaches included in the Rome Statute. Consequently, also ‘war crimes’ have material and mental elements that need to be proven before conduct can be classified as a war crime. However, as I already mentioned in the previous section, the ICC Statute contains crimes which have additional requirements to the general requirements laid down in article 30. This is indeed the case with war crimes. In order to be classified as a war crime the “prohibited act must have a connection to an armed conflict (a nexus or contextual requirement), must have been committed against a protected person or object under LOAC and must have been committed with the relevant mental element”.209 This phrase covers

199 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.187 200 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.187 201 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.187 202 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.187 203 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.187 204 Rogers S. Clark., The Mental Element in International Criminal Law: the Rome Statute of the International Criminal Court and the Elements of Offences, Criminal Law Forum, (2001). p.295 205 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.191 206 Rogers S. Clark., The Mental Element in International Criminal Law: the Rome Statute of the International Criminal Court and the Elements of Offences, Criminal Law Forum, (2001). p.295 207 Rogers S. Clark., The Mental Element in International Criminal Law: the Rome Statute of the International Criminal Court and the Elements of Offences, Criminal Law Forum, (2001). p.296 208 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.193 209 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.211 21 quite some elements. Therefore, I will go over all the aspects laid down in this sentence to provide further clarification with regard to the elements inherent to war crimes. To begin with, article 8(2)(b) of the Rome Statute holds that there has to be a connection to an armed conflict.210 Therefore, I would like to start by attributing some attention to the notion ‘armed conflict’. The ICTY Appeals Chamber, held in the Tadić case that “an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between government authorities and organized armed groups or between such groups within a State”.211 In line with this decision, a distinction was made between international armed conflicts (IACs) and non-international armed conflicts (NIACs) in article 8 of the Rome Statute.212 This distinction is essentially based on the (nature of) the parties involved in the conflict. In an international armed conflict ‘there is recourse to violence between states’, whereas in a non-international armed conflict the violence occurs ‘between a State and an organized armed group’ or ‘between (multiple) armed groups’ in one State.213 However, additional conditions need to be met with regard to a NIAC. To begin with, there needs to be a sufficient level of violence (i.e. ‘protracted violence’) and the armed groups involved in the conflict need to have a sufficient level of (military) organization. Subsequently, as explained by Guilfoyle, ‘Isolated and sporadic acts of violence’ (e.g. riots) and ‘short-lived and unorganized insurrections’ can thus not be classified as NIACs.214 This threshold is consistent with the purpose of the ICC: to “prosecute only the most serious crimes of concern to the international community”.215 Secondly, the phrase holds that the prohibited act has to be committed against ‘a protected person or object under the law of armed conflict’ (LOAC).216 Article 8(2)(c)(i) of the Rome Statute considers “persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause”217 to fall within the scope of the protected persons under LOAC. Now that it is clear who are meant by those ‘protected persons’, some attention needs to be devoted to the prohibited act the phrase refers to. With respect to this, the principle of distinction and the principle of proportionality provide some guidance. Being two of LOAC’s most fundamental rules, both principles are applicable to both IACs and NIACS.218 The principle of distinction revolves around the distinction between ‘civilians and civilian objects and military personnel and military objects’.219 The concept of ‘military objective’ is clarified under article 52(2) of Additional Protocol I of the Geneva Conventions. This article clarifies that “military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military actions and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage”.220 It is thus highly dependent on the situation and the context in which

210 Leila Nadya Sadat & S. Richard Carden, The New International Criminal Court: an uneasy Revolution, Georgetown Law Journal, (2000). p.434 211 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.204 212 Art.8(2)(b), art.8(2)(c), art.8(2)(e), Rome Statute of the International Criminal Court 213 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016), p.204 214 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.205 215 Leila Nadya Sadat & S. Richard Carden, The New International Criminal Court: an uneasy Revolution, Georgetown Law Journal, (2000). p.434 216 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.211 217 Art.8(2)(c)(i), Rome Statute of the International Criminal Court 218 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.201 219 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.201 220 Art. 52.2, Additional Protocol I of the Geneva Conventions, (8 June 1977)

22 the object is used, whether the object falls within the scope of a ‘military objective’.221 The principle of distinction thus holds that civilian objects and the civilian population may never be the direct target of an attack. It can be derived from this line of reasoning that “only combatants and other military objectives are considered to be lawful targets” under LOAC.222 Secondly, there’s the principle of proportionality, which holds that “even military objectives may not be attacked if an attack is likely to cause civilian casualties or damage which would be excessive in relation to the concrete and direct military advantage which the attack is expected to produce”.223 In essence, this means that the attack, even if it concerns a military target, may not be carried out if the damage (i.e. death to civilians or incidental damage) is disproportionate to the legitimate military aims.224 These two principles thus offer guidance with regard to what is and what is not allowed in times of armed conflict. A violation of one of these principles would thus constitute the material element of ‘war crimes’. However, the perpetrator needs to commit these violations with the “intent to commit this particular prohibited act with knowledge of the relevant facts or contextual elements (i.e. the armed conflict) ”.225 This means that the factual circumstances establishing the victims’ protected status and the armed conflict must have been known to the perpetrator while he committed the prohibited act. This however raises the question of what standard of knowledge the perpetrator needed to have of the existence of the armed conflict. This issue is addressed in the ‘Elements of Crimes’ section in the Rome Statute. article 8(c) of this segment holds that only an “awareness of the factual circumstances that established the existence of an armed conflict” is required in order to meet the mental element of ‘war crimes’.226

3.3 Crimes against humanity Crimes against humanity are also listed in the Rome Statute as crimes over which the ICC has jurisdiction. As Ntaganda was also charged with five counts of crimes against humanity,227 it is indeed relevant to get a thorough understanding of the concept of ‘crimes against humanity’. For a crime to be classified as a crime against humanity, it must have been “committed as part of a widespread or systematic attack against any civilian population”.228 With this ‘threshold requirement’ (the contextual element of the crime), crimes of such nature are set apart from ‘normal’ crimes. However, when the threshold is met, a crime that was once considered a ‘purely international atrocity’ is now perceived as a ‘threat to the peace, security and wellbeing of the world’.229 As clarified by Guilfoyle, the ICC holds an attack to be something which is organized, planned or directed. Thus isolated and spontaneous acts of violence cannot be classified as an ‘attack’.230 Also the phrase ‘any civilian population’ requires some further explanation. In essence, the phrase refers to all the persons who can become or have become the victim of (a) crime(s) against humanity. The use of the word ‘any’, however, is remarkable, as it can encompass many different populations. Consequently, stateless persons, enemy nationals

221 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.202 222 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.201 223 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.201 224 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.201 225 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.214 226 Art.8(c), Rome Statute of the International Criminal Court 227 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.682 228 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.243 229 Robert Dubler, What’s in a Name? A Theory of Crimes Against Humanity, Australian International Law Journal, (2008). p.86 230 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.246 23

(in times of armed conflict) and a state’s own nationals (either in peace or in times of armed conflict) can all be considered to fall under the scope of ‘any civilian population’.231 This definition, however, was adopted for a reason. In the case of a crime against humanity, the target population of the violence (or attack) has to be predominantly civilian. Therefore it is important that the definition of ‘any civilian population’ is considered as broadly as possible. It has to be noted, however, that a population won’t be deprived of its civilian character if some military personnel is present when an attack takes place.232 On top of that, the Rome Statute states that the commission of the crime has to be part of ‘a widespread or systematic attack against civilians’.233 Consequently, ‘widespread’ and ‘systematic’ are two important terms with regard to crimes against humanity. The ICC Elements of Crimes hold ‘widespread’ to mean “a course of conduct involving the multiple commission of prohibited acts”.234 Whereas the term ‘systematic’ refers to “an attack that is to some degree organized or methodical”.235 If an attack is considered to be both widespread and systematic, this usually generates a responsibility ‘on the part of the international community to respond to such attacks’.236 Random attacks are thus excluded from the scope of crimes against humanity. This is also reflected in the ‘Elements of Crimes’ section within the ICC Statute. It is laid down within this section that the ICC requires that “the attack is pursuant or in furtherance of a State or organizational policy to commit such attack”.237 At first sight, this seems to be a very high standard. In practice, however, the ICC has taken on the view that the ‘policy does not have to be formalized’. The court recognized that there’s a wide variation of types of organizations that are ‘capable of carrying out an attack against a civilian population.238 In summary, the ICC has to be able to demonstrate without reasonable doubt, that the perpetrator committed the criminal act ‘in the context of an attack on a civilian population’ as the material element of crimes against humanity.239 The mental element holds that the perpetrator had to know that his conduct “was part of or intended his conduct to be part of a widespread or systematic attack against the civilian population”.240 This standard of knowledge indicates that the perpetrator does not need to have “knowledge of all characteristics of the attack or the precise details of the plan or policy of the State or organization”.241 Conclusion It is laid down in the Rome Statute that the ICC has jurisdiction over the four ‘core’ international crimes:242 war crimes and crimes against humanity being two of them. The ‘Elements of Crimes’ section holds that each crime is “made up of a combination of material elements with defined mental elements attached to each”.243 Whereas, the four ‘core’

231 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.244 232 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.244 233 Leila Nadya Sadat & S. Richard Carden, The New International Criminal Court: an uneasy Revolution, Georgetown Law Journal, (2000). p.429 234 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.246 235 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.246 236 Robert Dubler, What’s in a Name? A Theory of Crimes Against Humanity, Australian International Law Review, (2008). p.86 237 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.247 238 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.247 239 Leila Nadya Sadat & S. Richard Carden, The New International Criminal Court: an uneasy Revolution, Georgetown Law Journal, (2000). P.431 240 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.249 241 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.249 242 Kas Wachala, The Tools to combat the War on Women’s Bodies: Rape and Sexual Violence against Women in Armed Conflict, The International Journal of Human Rights, (2012). p.542-543 243 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.184 24 international crimes each have their own material and mental elements, both war crimes and crimes against humanity have additional elements that have to be met. In essence, a war crime is a prohibited act committed in a specific context (the armed conflict) against a protected person or object under LOAC, with the relevant mental element.244 However, the nexus requirement, which holds that the prohibited act must have a connection to an armed conflict, must not be overlooked either.245 The relevant armed conflict can be either an international armed conflict (between States) or a non-international armed conflict (between a State and an organized armed group or between such armed groups).246 Crimes against humanity, on the other hand, are prohibited acts “committed as part of a widespread or systematic attack against any civilian population” with the relevant mental element247 (i.e. with knowledge of the attack).248 Initially, the ICC required the attack to be “pursuant or in furtherance of a State or organizational policy”,249 but in practice the standard appears to be not that high. The ICC considers the threshold to be met if the attack is either organized, planned or directed.250 Opposed to war crimes, however, a crime against humanity does not need to have a linkage to an armed conflict.251

244 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.211 245 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.211 246 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.204 247 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.243 248 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.244 249 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.247 250 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.247 251 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.242 25

Chapter 4: The Development of the Definition of Rape as a War Crime and as a Crime against Humanity before the Ntaganda Case

In the 1990s the UN Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda.252 Before the 1990s, sexual and gender-based violence was largely ignored and sometimes even silenced. Also the international treaties, for example the Geneva Conventions and the Additional Protocols, attributed little attention to these types of crimes. However, this trend was about to change with the establishment of the ICTY and the ICTR. The international criminal tribunals started with the characterization of ‘rape as a violent crime’.253 Their case-law was taken over by ‘subsequent quasi-international tribunals’.254 Also the legislation concerning sexual and gender-based offences of the ICC Statute was influenced by the decisions of the ICTY and the ICTR.255 But how did the ICTY and the ICTR define the crime of rape and other crimes of sexual and gender-based violence? How did the legislation regarding rape develop through the various cases heard before both tribunals and what were the discrepancies of these established definitions? Numerous cases involving crimes of sexual violence have also been brought before the ICC. The ICC Statute was adopted on the 17th of July in 1998 and entered into force on the 1st of July in 2002.256 By that time, the ICYT and the ICTR had made a significant contribution to the international definition of rape and the development of rape as a crime against humanity.257 With regard to the already established definition(s) of rape by the international criminal tribunals the question arises whether the ICC adopted one of these definitions or developed its own. How has rape been defined in the ICC Statute and in the ICC jurisprudence? In order to provide a thorough answer to these questions, this chapter will first examine the definition of rape as established and adopted in a few prominent cases before brought before the ICTY and the ICTR. I will elaborate on the different approaches used by the two international criminal tribunals and examine how the created definitions differ. Then, attention will be attributed to the definition of rape as a war crime and rape as a crime against humanity under the ICC Statute. Finally, I will examine how the ICC attempted to convict the perpetrators of crimes of sexual violence in the Bemba case and the Katanga case.

252 Sergey Y. Marochkin & Galina A. Nelaeva, Rape and Sexual Violence as Torture and Genocide in the Decisions of International Tribunals: Transjudicial Networks of International Criminal Law, Human Rights Review, (8 July 2014). p.473 253 Sergey Y. Marochkin & Galina A. Nelaeva, Rape and Sexual Violence as Torture and Genocide in the Decisions of International Tribunals: Transjudicial Networks of International Criminal Law, Human Rights Review, (8 July 2014). p.476 254 Sergey Y. Marochkin & Galina A. Nelaeva, Rape and Sexual Violence as Torture and Genocide in the Decisions of International Tribunals: Transjudicial Networks of International Criminal Law, Human Rights Review, (8 July 2014). p.476 255 Sergey Y. Marochkin & Galina A. Nelaeva, Rape and Sexual Violence as Torture and Genocide in the Decisions of International Tribunals: Transjudicial Networks of International Criminal Law, Human Rights Review, (8 July 2014). p.473 256 Cherie Booth & Max du Plessis, The International Criminal Court and Victims of Sexual Violence, South African Journal of Criminal Justice, (2005). p.245 257 Kas Wachala, The Tools to combat the War on Women’s Bodies: Rape and Sexual Violence against Women in Armed Conflict, The International Journal of Human Rights, (2012). p.542 26

4.1 The International Criminal Tribunals and their Definition of Rape International criminal tribunals are either established by the UN Security Council by a Chapter VII resolution or by a treaty. Both the ICTR and the ICTY were created through the UN Security Council258. However, before I will provide an overview of the most important cases relating to sexual violence heard before these tribunals, I will first briefly discuss their jurisdiction. The International Criminal Tribunal of Rwanda (ICTR) was established in 1994.259 Article 1 of its Statute holds that the ICTR may try “persons responsible for serious violations of international humanitarian law, committed in the territory of Rwanda between 1 January 1994 and 31 December 1994”.260 However, as laid down in article 1, the ICTR may also try “Rwandan citizens responsible for serious violations of international humanitarian law committed in the territory of neighboring states between 1 January 1994 and 31 December 1994”.261 So, on the basis of this article, the ICTR has subject-matter jurisdiction over ‘serious violations of international humanitarian law’.262 However, the temporal jurisdiction included in the Statute holds that the ICTR merely can try individuals who committed such crimes between 1 January 1994 and 31 December 1994. Moreover, the ICTR’s territorial jurisdiction is limited to Rwanda and its neighboring states.263 The Statute of the ICTY, on the other hand, holds that the ICTY has “the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991”.264 Like the ICTR, the ICTY has subject-matter jurisdiction over ‘serious violation of international humanitarian law’.265 Other than the temporal jurisdiction of the ICTR, that of the ICTY seems to lack confinement. Its Statute holds that it has temporal jurisdiction over crimes committed after 1991266, but it doesn’t indicate a termination of the ICTY’s temporal jurisdiction. Finally, the ICTY’s territorial jurisdiction is limited to the territory of the former Yugoslavia.267 Having elaborated on the jurisdiction of both international criminal tribunals, I’ve provided more clarity about the nature of the crimes heard before the ICTR and the ICTY and the questions of when and where these crimes were committed. Now I would like to go over the most important cases, with regard to crimes of sexual violence, brought before both tribunals. I will start with the definition of rape as established before the ICTR in the Akayesu case. Then I discuss the definition of rape used in the ICTY Furundžija case. Also the Kunarac case and the Čelebići Judgment of the ICTY are of importance in examining the development of the definition of rape in international criminal law. Finally, I will briefly go over the Gacumbitisi case during which the definition of each respective tribunal came together.

258 Daniel D. Ntanda Nsereko, Genocidal Conflict in Rwanda and the ICTR, Netherlands International Law Review, (2001). p.39 & Galina Nelaeva, Establishment of the International Criminal Tribunal in the Former Yugoslavia (ICTY): Dealing with the “War raging at the Heart of Europe”, Romanian Journal of European Affairs, (2011). p.105 259 Daniel D. Ntanda Nsereko, Genocidal Conflict in Rwanda and the ICTR, Netherlands International Law Review, (2001). p.39 260 Daniel D. Ntanda Nsereko, Genocidal Conflict in Rwanda and the ICTR, Netherlands International Law Review, (2001). p.41 261 Daniel D. Ntanda Nsereko, Genocidal Conflict in Rwanda and the ICTR, Netherlands International Law Review, (2001). p.41 262 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.101 263 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.102 264 Art. 1, the Updated Statute of the International Criminal Tribunal for the Former Yugoslavia 265 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.101 266 Douglas Guilfoyle, International criminal Law, Oxford University Press, (2016). p.102 267 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.102 27

4.2 Rape before the ICTR The Akayesu case is one of the most compelling cases brought before the ICTR. During the Rwandan genocide, at least two thousand Tutsis died in the rural commune Taba of which Jean-Peal Akayesu was the mayor.268 Initially, the crime of rape was not among the offences that Akayesu was charged with. However, due to Judge Pillay (the only woman on the panel) and various human rights groups, the crime of rape was in the end included in the amended indictment. However, this also meant that the Tribunal was suddenly obligated to “determine when sexual violence constitutes an international crime”. As no previous court established a definition for rape, the Akayesu judgment became “the first judicial decision of an international criminal tribunal to propose an international law definition for rape”.269 However the fact that no previous court established a definition for rape created an issue concerning the ICTR’s jurisdiction to do so. The ICTR resolved this issue using article 4 of its Statute, which holds that the ICTR has the power “to prosecute persons committing or ordering to be committed serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of June 1977”.270 A loophole was found in article 4(g) of the Statute, which holds that “these violations shall include the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court”.271 The ICTR that concluded that it was competent to establish a definition of the crime of rape on the basis of article 4(g) of its Statute. This competence was derived ‘in the context of the consideration of rape as a crime against humanity”.272 The Trial Chamber perceived rape as a form of aggression and argued that it was impossible to capture all central elements of the crime of rape in ‘a mechanical description of objects and body parts’.273 Therefore, the Chamber opted for a ‘conceptual approach’, which entails that it wanted to create a definition that only provides the ‘essential aspects of the crime’. The Chamber thus wanted to avoid that an ‘exhaustive list of modalities’ was included into the definition.274 Realizing that rape was used for purposes of humiliation, control, intimidation, punishment, degradation, discrimination and the destruction of a person, the Trial Chamber wanted to create a definition which asserted the violence aspect inherent in the crime of rape. In the eyes of the Chamber, rape was seen as a violation of human dignity.275 The Trial Chamber considered sexual violence to be “any act of sexual violence which is committed on a person under circumstances which are coercive”.276 Consequently, the Akayesu Trial Chamber considered rape to be “a physical invasion of a sexual nature, committed on a person under circumstances which are coercive”.277 The Chamber held coercion to be more than just ‘physical force’. Intimidation, threats extortion and other forms

268 Diana Maria Amann, Prosecutor v. Akayesu Case ICTR-96-4-T, The American Journal of International Law, (January 1999). p.195 269 Magdalini Karagiannakis, Case Analysis: the Definition of Rape and its Characterization as an Act of Genocide – a Review of the Jurisprudence of the International Criminal Tribunals for Rwanda and the Former Yugoslavia, Leiden Journal of International Law, (1999). p.481 270 Art.4, Statute of the International Tribunal for Rwanda 271 Art.4(g), Statute of the International Tribunal for Rwanda 272 Magdalini Karagiannakis, Case Analysis: the Definition of Rape and its Characterization as an Act of Genocide – a Review of the Jurisprudence of the International Criminal Tribunals for Rwanda and the Former Yugoslavia, Leiden Journal of International Law, (1999). p.481 273 Magdalini Karagiannakis, Case Analysis: the Definition of Rape and its Characterization as an Act of Genocide – a Review of the Jurisprudence of the International Criminal Tribunals for Rwanda and the Former Yugoslavia, Leiden Journal of International Law, (1999). p.481 274 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.57 275 Magdalini Karagiannakis, Case Analysis: the Definition of Rape and its Characterization as an Act of Genocide – a Review of the Jurisprudence of the International Criminal Tribunals for Rwanda and the Former Yugoslavia, Leiden Journal of International Law, (1999). p.481 276 Magdalini Karagiannakis, Case Analysis: the Definition of Rape and its Characterization as an Act of Genocide – a Review of the Jurisprudence of the International Criminal Tribunals for Rwanda and the Former Yugoslavia, Leiden Journal of International Law, (1999). p.482 277 Magdalini Karagiannakis, Case Analysis: the Definition of Rape and its Characterization as an Act of Genocide – a Review of the Jurisprudence of the International Criminal Tribunals for Rwanda and the Former Yugoslavia, Leiden Journal of International Law, (1999). p.481 28 of duress, e.g. the presence of armed militants or the existence of an armed conflict thus also fall under the scope of the term ‘coercive’.278 On the basis of this definition, the prosecution has to provide evidence of the ‘physical, sexual invasion’279 and ‘the coercive circumstances in which the act of rape took place’.280 If the prosecution is able to prove both, the perpetrator can be convicted for the crime of rape. With this definition, the ICTR thus set a standard which is “sufficiently precise and within the accepted definitions to give notice of forbidden conduct”.281 4.2 Rape before the ICTY The central issue in the Furundžija case was whether the accused ‘was guilty of outrages on personal dignity including rape’, which is listed as a crime under article 3 of its Statute.282 In this case, the ICTY diverged from the Akayesu standard.283 Trial Chamber II of Furundžija opted for a different approach in the development of its own definition of rape.284 The Chamber began with examining the customary international law and the international humanitarian law prohibiting rape and came to the conclusion that ‘no definition of rape can be found in international law’.285 The Trial Chamber reasoned that in order to abide by the principle of specificity (‘nullum crimen sine lege stricta’), its definition of rape had to be drawn from national jurisdictions.286 Based on its thorough examination of the existing national laws of rape, the Trial Chamber held that most common and civil law jurisdictions consider rape to be “the forcible sexual penetration of the human body by the penis or the forcible insertion of any other object into either the vagina or the anus”.287 Moreover, the Trial Chamber argued that oral penetration should be classified as rape as well, as it ‘breaches the general principle of international humanitarian law of respect for human dignity’.288 Eventually, the Chamber administered a definition which included both the requirement of coercion (or force) and a list of acts.289 The Chamber held that the following acts may be acknowledged as the objective elements of rape: “(i) The sexual penetration, however slight: (a) of the vagina or anus of the victim or 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 (ii) by coercion or force or threat of force against the victim or a third person”290

278 Diana Maria Amann, Prosecutor v. Akayesu Case ICTR-96-4-T, The American Journal of International Law, (January 1999). p.197 279 Diana Maria Amann, Prosecutor v. Akayesu Case ICTR-96-4-T, The American Journal of International Law, (January 1999). p.199 280 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.58 281 Diana Maria Amann, Prosecutor v. Akayesu Case ICTR-96-4-T, The American Journal of International Law, (January 1999). p.199 282 Magdalini Karagiannakis, Case Analysis: the Definition of Rape and its Characterization as an Act of Genocide – a Review of the Jurisprudence of the International Criminal Tribunals for Rwanda and the Former Yugoslavia, Leiden Journal of International Law, (1999). p.482 283 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.58 284 Magdalini Karagiannakis, Case Analysis: the Definition of Rape and its Characterization as an Act of Genocide – a Review of the Jurisprudence of the International Criminal Tribunals for Rwanda and the Former Yugoslavia, Leiden Journal of International Law, (1999). p.483 285 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.58 286 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.58-59 287 Magdalini Karagiannakis, Case Analysis: the Definition of Rape and its Characterization as an Act of Genocide – a Review of the Jurisprudence of the International Criminal Tribunals for Rwanda and the Former Yugoslavia, Leiden Journal of International Law, (1999). p.484 288 Magdalini Karagiannakis, Case Analysis: the Definition of Rape and its Characterization as an Act of Genocide – a Review of the Jurisprudence of the International Criminal Tribunals for Rwanda and the Former Yugoslavia, Leiden Journal of International Law, (1999). p.484 289 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.60 290 Magdalini Karagiannakis, Case Analysis: the Definition of Rape and its Characterization as an Act of Genocide – a Review of the Jurisprudence of the International Criminal Tribunals for Rwanda and the Former Yugoslavia, Leiden Journal of International Law, (1999). p.484 29

4.3 The Kunarac Case In the Kunarac case, the Trial Chamber dealt with the question of ‘force’291 in the crime of rape and thereby elaborated on the element of ‘force’ (or threat of force, or coercion)’.292 The Trial Chamber approved the approach used in the Furundžija case, but opined that the process of identifying certain basic principles from national jurisdictions was not merely about finding the ‘majority approach’.293 It held that “the Furundžija definition relating ‘to coercion or force of threat or threat of force’ was ‘more narrowly stated than required by international law”.294 The Chamber argued that other factors which would make an act of sexual penetration non-voluntary or non-consensual on the part of the victim were not included in the ‘Furundžija definition’.295 The Chamber was of the opinion that the more basic and wider principle of ‘penalizing violations of sexual autonomy’ was the essential feature that unified the various (legal) systems.296 Consequently, the Appeals Chamber choose not to adopt ‘Furundžija definition of rape’,297 and included the concept of non-consent in its own definition.298 The Appeals Chamber of Kunarac held rape to be: “(i) 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 (b) the mouth of the victim by the penis of the perpetrator (ii) where such sexual penetration occurs without the consent of the victim”299 The notion of consent, inherent in this definition, holds that the victim must have consented out of his or her own free will. The court thus has to determine whether this was indeed the case ‘in the context of the surrounding circumstances’ in which the rape took place.300 On the basis of this definition, the required mens rea for the crime of rape can be held to be the ‘intention to effect this sexual penetration’ with ‘the knowledge that it occurs without the consent of the victim’.301 The Čelebići Judgment further contributed to the concept of ‘consent’. In that case, the Trial Chamber held that unless the accused can prove the absence of actual, feared or threatened violence and the absence of detention, duress or psychological oppression against the victim or a third person, the defense of consent will not hold. Each of the aforementioned circumstances and acts thus exclude the possibility of consent. In doing so, the Chamber established an important threshold for the defense of consent.302

291 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.62-63 292 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.61 293 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.61 294 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.61 295 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.61 296 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.61 297 Cherie Booth & Max du Plessis, The International Criminal Court and Victims of Sexual Violence, South African Journal of Criminal Justice, (2005). p.250 298 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.61 299 Cherie Booth & Max du Plessis, The International Criminal Court and Victims of Sexual Violence, South African Journal of Criminal Justice, (2005). p.250 300 Cherie Booth & Max du Plessis, The International Criminal Court and Victims of Sexual Violence, South African Journal of Criminal Justice, (2005). p.250 301 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.61 302 Magdalini Karagiannakis, Case Analysis: the Definition of Rape and its Characterization as an Act of Genocide – a Review of the Jurisprudence of the International Criminal Tribunals for Rwanda and the Former Yugoslavia, Leiden Journal of International Law, (1999). p.485 30

4.4 Contradictory Definitions? On the basis of the previous paragraphs, it can be concluded that a noticeable contradiction existed between the ICTR Akayesu judgment and the Kunarac judgment.303 The ICTR used the conceptual approach and defined rape as “a physical invasion of a sexual invasion under coercive circumstances” in the Akayesu case.304 Before the ICTY, however, “rape was defined as requiring proof of the lack of consent to sexual penetration” in the Kunarac case.305 As a result, there was quite some ambiguity concerning the definition of the crime of rape. This ambiguity was (partly) taken away in the Gacumbitsi case. In this case, the Prosecutor’s appeal specifically requested the Appeals Chamber to “address the definition of rape under international criminal law, and in particular, whether consent was an element of crime”.306 The joint Appeals Chamber of the ICTY and the ICTR, 307 thus had the opportunity to provide guidance on the required proof for rape under international law in the appeals judgment of the Gacumbitsi case.308 In doing so, the joint Appeals Chamber first examined the similarities of both definitions. It found that the element of a ‘penetration of a sexual nature’ which is ‘against the will of the victim’ is inherent in the definition of both the ICTR and the ICTY.309 The ambiguity thus revolved around the concept of ‘consent’. The Appeals Chamber first considered whether ‘non-consent and knowledge thereof’ are indeed elements of the crime of rape or whether consent should be considered to be an affirmative defense”.310 With regard to the definition of rape in national jurisdictions, the joint Appeals Chamber found that “consent is an aspect of the definition that is generally understood to be absence of consent”.311 The Chamber considered ‘the absence of consent’ an element of the crime of rape.312 Moreover, the ICTY Appeals Chamber, also held ‘non-consent and knowledge thereof’ to be elements of rape as a crime against humanity in Kunarac”.313 Consequently, the joint Appeals Chamber of the ICTY and the ICTR held that consent cannot be considered as an affirmative defense.314 Following this determination, the Appeals Chamber discussed “how non-consent and the knowledge thereof may be proved”.315 The answer lies in the existence of coercive circumstances which make meaningful consent impossible.316 The Prosecution thus has to be able to “establish beyond reasonable doubt that the accused was aware, or had reason to be aware, of the coercive circumstances that undermined the possibility of genuine consent”.317 So, in its answer, the joint Appeals Chamber, more or less, combined the judgments of Kunarac and Akayesu.

303 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.63 304 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.56 305 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.56 306 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.56 307 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.56 308 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.63 309 Magdalini Karagiannakis, Case Analysis: the Definition of Rape and its Characterization as an Act of Genocide – a Review of the Jurisprudence of the International Criminal Tribunals for Rwanda and the Former Yugoslavia, Leiden Journal of International Law, (1999). p.490 310 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.71-72 311 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.72 312 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.72 313 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.72 314 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.72 315 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.71-72 316 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.72 317 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.72 31

4.5 The International Criminal Court and its Definition of Rape The ICC offered yet another contribution to the substantial body of international jurisprudence on rape that exists today. The crime of rape is not defined in the ICC Statute, but in the accompanying Elements of Crimes.318 The Elements of Crimes section has clearly drawn on the jurisprudence of the ICTR and the ICTY. The requirements inherent to the ICC definition of rape turned out to be quite similar to those established by the ICTR and the ICTY.319 However, merely examining the definition of rape as laid down in the Elements of Crimes is not sufficient to get a thorough understanding of the development of rape before the ICC. An analysis of the interpretation and application of this definition in cases brought before the ICC is also required. Consequently, I will start with discussing the definition of rape as laid down in the ICC Elements of Crimes section. While doing so, I will briefly elaborate on the notions of ‘rape as a war crime’ and ‘rape as a crime against humanity’. Thereafter, I will discuss two important cases, involving the crime of rape, heard before the ICC. I will start by attributing some attention to the Bemba case and the definition formulated and applied therein. I will then do the same for the Katanga case.

4.6 Rape under the ICC Statute In the Elements of Crimes Section of the ICC, rape is held to be “the invasion of the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body”.320 However, in order to be considered a crime, the invasion has to be “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 by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent”.321 Both the element of coercion, inherent to the ICTR Akayesu definition, and the element of consent, inherent to the ICTY Kunarac case 322 are thus included in the ICC definition of rape. Within the Elements of Crimes section, rape is defined as a war crime and as a crime against humanity.323 The material element described in the previous paragraph is exactly the same for both ‘core crimes’. The contextual and mental elements, however, are not. For clarity’s sake, I will briefly discuss these elements for both crimes before turning to the jurisprudence. The contextual element of ‘rape as a war crime’ holds that the rape must have been committed “in the context of and was associated with either an international armed conflict or a non-international armed conflict”.324 For the mental element, the ICC needs to be able to prove, without reasonable doubt, that “the perpetrator was aware of the factual circumstances that established the existence of an armed conflict”.325 In order for a rape to be classified as a crime against humanity, the criminal conduct has to be “committed as part of a widespread or systematic attack directed against a civilian population”.326 It is this contextual element that sets crimes against humanity apart from

318 Janine Natalya Clark, The First Rape Conviction at the ICC: an Analysis of the Bemba Judgment, Journal of International Criminal Justice, (2016). p. 676 319 Cherie Booth & Max du Plessis, The International Criminal Court and Victims of Sexual Violence, South African Journal of Criminal Justice, (2005). p.252 320 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.225 321 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.225 322 Kas Wachala, The Tools to combat the War on Women’s Bodies: Rape and Sexual Violence against Women in Armed Conflict, The International Journal of Human Rights, (2012). p.543 323 Janine Natalya Clark., The First Rape Conviction at the ICC: an Analysis of the Bemba Judgment, Journal of International Criminal Justice, (2016). p.676 324 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.225 325 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.243 326 Cherie Booth & Max du Plessis, The International Criminal Court and Victims of Sexual Violence, South African Journal of Criminal Justice, (2005). p.252 32

‘normal’ crimes.327 For the mental element, the court has to establish, beyond reasonable doubt, that “the perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population”.328 4.7 Rape in the Bemba Case The definition of rape, as formulated in the Elements of Crimes section, was used by the Bemba Trial Chamber.329 The Bemba Gombo case was the first before the ICC in which the crime of rape was considered to be a weapon of war.330 In addition, it was the first case in which the crime of rape took center stage.331 Therefore, as also noted by Sadat, the Bemba trial judgment is important and noteworthy332 in my endeavor to research the development of the definition of rape. Mr. Bemba was charged with three counts of war crimes (murder, rape and pillaging) and two counts of crimes against humanity (murder and rape).333 As only the contextual elements of crimes against humanity and war crimes differ, the Bemba Trial Chamber chose to address both crimes in the same section.334 As the mental element of these crimes both include the notions of ‘knowledge’ and ‘intent’, as laid down in article 30(1)335, considered the mental element to be similar for both crimes. The Chamber held the material element of the crime of rape to be twofold. To begin with, there’s the element of the ‘invasion of the body of a person’. The Chamber held that “rape requires the ‘invasion’ of a person’s body by “conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body”’.336 The phrase ‘of any part of the body’ is incorporated into this sentence. The inclusion of this phrase indicates the oral penetration (i.e. the ‘invasion’ of the victim’s mouth by a sexual organ) is also meant to fall within the scope of the definition of rape. This is in line with the ICTY Furundžija case,337 in which the Trial Chamber also argued that oral penetration should be classified as rape.338 Moreover, the ICC Elements of Crimes intended the concept of ‘invasion’ to be broad enough to be gender-neutral, as the perpetrators and victims of the crime of rape can be both male and/or female. Consequently, same-sex penetration was intended to fall within the scope of this definition.339

327 Robert Dubler, What’s in a Name? A Theory of Crimes Against Humanity, Australian International Law Journal, (2008). p.86 328 Cherie Booth & Max du Plessis, The International Criminal Court and Victims of Sexual Violence, South African Journal of Criminal Justice, (2005). p.252 329 Janine Natalya Clark., The First Rape Conviction at the ICC: an Analysis of the Bemba Judgment, Journal of International Criminal Justice, (2016). p.676 330 Marie-Alice D’Aoust, Sexual and Gender-based Violence in International Criminal Law: a Feminist Assessment of the Bemba Case, International Criminal Law Review, (2017). p.209 331 Kas Wachala, The Tools to combat the War on Women’s Bodies: Rape and Sexual Violence against Women in Armed Conflict, The International Journal of Human Rights, (2012). p.543 332 Leila Nadya Sadat, Prosecutor v. Jean-Pierre Bemba Gombo, American Journal of International Law, (April 2019), p.354 333 Johan D. van der Vyver, Prosecutor v. Jean-Pierre Bemba Gombo (Decision pursuant to Article 67(1)(a) and (b) of the Rome Statute on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo), The American Journal of International Law, (2010). p.241 334 ICC, Trial Chamber III, Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo (Judgment), (21 March 2016), ICC-01/05-01/08, §98 335 Rogers S. Clark., The Mental Element in International Criminal Law: the Rome Statute of the International Criminal Court and the Elements of Offences, Criminal Law Forum, (2001). p.295 336 ICC, Trial Chamber III, Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo (Judgment), (21 March 2016), ICC-01/05-01/08, §99 337 ICC, Trial Chamber III, Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo (Judgment), (21 March 2016), ICC-01/05-01/08, §101 338 Magdalini Karagiannakis, Case Analysis: the Definition of Rape and its Characterization as an Act of Genocide – a Review of the Jurisprudence of the International Criminal Tribunals for Rwanda and the Former Yugoslavia, Leiden Journal of International Law, (1999). p.484 339 ICC, Trial Chamber III, Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo (Judgment), (21 March 2016), ICC-01/05-01/08, §100 33

The second feature of the material element concerns the ‘circumstances in which rape occurs’.340 In order to constitute rape, the invasion of the body of a person has to be committed (1) ‘by force’, (2) ‘by threat of force or coercion’, (3) ‘by taking advantage of a coercive environment’ or, (4) ‘against a person incapable of giving genuine consent’.341 The first condition is quite straightforward and thus does not require any further explanation. The other three circumstances, however, are not that unequivocal. The Trial Chamber, therefore, focused on providing further clarification with regard to these three possible circumstances for rape. The Chamber attributed specific attention to the notion of ‘coercion’. With regard to the second circumstance, the Trial Chamber specified that ‘an invasion by threat of force or coercion’ can, e.g. be caused by duress, by fear of violence, by psychological oppression or abuse of power against such person or another person by detention.342 However, as acknowledged by Clark, the Bemba judgment particularly added to the ‘extant case law through its discussion of the term ‘coercive environment”’.343 The Bemba Trial Chamber thereby relied on the Akayesu judgment of the ICTR,344 which held that the term ‘coercion’ also covered threat extortion, intimidation and other forms of duress, e.g. the presence of armed militants or the existence of an armed conflict.345 This line of reasoning was followed in Bemba, as the Chamber held that coercive circumstances are not limited to physical force.346 Moreover, the Chamber acknowledged that several other factors could also contribute to the creation of a coercive environment. These factors include, the rape being committed together with other crimes, the number of people involved in the commission of the crime or whether the rape is committed immediately after or during a combat situation.347 The Chamber thus did not limit the range of ‘coercive factors’ to those already mentioned in the Akayesu case.348 The Bemba Trial Chamber thus ‘recognized the multi-layered reality of coercion in situations of armed conflict, and the fact that it can assume both active (actions) and passive (circumstances) forms’, as noted by Clark.349 It needs to be noted, however, that the court also has to prove that “the perpetrator’s conduct involved ‘taking advantage’ of the coercive environment” in addition to the mere existence of a ‘coercive environment’.350 The notion of ‘consent’ is inherent to the fourth circumstance mentioned in the ICC’s Elements of Crimes section.351 The Chamber held that “a person may be incapable of giving genuine consent if affected by natural, induced or age-related incapacity”.352 With this

340 ICC, Trial Chamber III, Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo (Judgment), (21 March 2016), ICC-01/05-01/08, p.53 341 ICC, Trial Chamber III, Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo (Judgment), (21 March 2016), ICC-01/05-01/08, §102 342 ICC, Trial Chamber III, Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo (Judgment), (21 March 2016), ICC-01/05-01/08, §102 343 Janine Natalya Clark., The First Rape Conviction at the ICC: an Analysis of the Bemba Judgment, Journal of International Criminal Justice, (2016). p.677 344 Janine Natalya Clark., The First Rape Conviction at the ICC: an Analysis of the Bemba Judgment, Journal of International Criminal Justice, (2016). p.677 345 Diana Maria Amann, Prosecutor v. Akayesu Case ICTR-96-4-T, The American Journal of International Law, (January 1999). p.197 346 ICC, Trial Chamber III, Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo (Judgment), (21 March 2016), ICC-01/05-01/08, §103 347 ICC, Trial Chamber III, Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo (Judgment), (21 March 2016), ICC-01/05-01/08, §104 348 ICC, Trial Chamber III, Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo (Judgment), (21 March 2016), ICC-01/05-01/08, §104 349 Janine Natalya Clark., The First Rape Conviction at the ICC: an Analysis of the Bemba Judgment, Journal of International Criminal Justice, (2016). p.677 350 ICC, Trial Chamber III, Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo (Judgment), (21 March 2016), ICC-01/05-01/08, §104 351 Janine Natalya Clark., The First Rape Conviction at the ICC: an Analysis of the Bemba Judgment, Journal of International Criminal Justice, (2016). p.676 352 ICC, Trial Chamber III, Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo (Judgment), (21 March 2016), ICC-01/05-01/08, §107 34 definition, the Chamber recognized that ‘certain categories of people may be fundamentally unable to give consent whatever the circumstances’.353 This is in line with the Elements of Crimes section, which appears to ‘draw a clear distinction between circumstances and consent’. It is, however, in contrast with the ICTY Kunarac case, in which the Chamber held that a victim’s free will may be overpowered by coercive circumstances.354 With regard to the notion of consent, the Bemba Trial Chamber considered it to be sufficient for the Prosecution to prove that “the victims capacity to give genuine consent was affected by natural, induced or age-related incapacity”.355 Moreover, “where ‘force’, ‘threat of force or coercion’, or ‘taking advantage of a coercive environment is proven’, the Chamber considers that the Prosecution does not need to prove the victims’ lack of consent”.356 It should be noted, however, that merely the material element of the ‘invasion of the body of a person’ is not enough to constitute a crime.357 It is the second material element that gives the ‘invasion’ its criminal character. Consequently, both material elements need to be met, before the conduct can be classified as rape. However, only one of the four circumstances inherent to the second material element needs to be proven.358 As explained in chapter 3, a crime is “made up of a combination of material elements with defined mental elements attached to each”.359 Consequently, attention needs to be attributed to the required mental element as well. Article 30(1) of the Rome Statute holds that a person is “criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge”.360 For the crime of rape, the Chamber held that “intent will be established where it is proven that the perpetrator meant to engage in the conduct in order for the penetration to take place”.361 Regarding the requirement of ‘knowledge’, the Chamber held that “it must be proven that the perpetrator was aware that the act was committed by force, by the threat of force or coercion, by taking advantage of a coercive environment, or against a person incapable of giving genuine consent”.362 In the end, the Bemba case ended rather disappointing for the victims of sexual violence. Jean-Pierre Bemba Gombo was initially convicted for three counts of war crimes (pillaging, murder and rape) and two counts of crimes against humanity (murder and rape) on the 21st of March 2016.363 This judgment, however, was reversed on the 8th of June 2018 by the Appeals Chamber. As Mr. Bemba was acquitted of all charges,364 he was thus neither convicted for rape nor for other crimes of sexual violence.

353 Janine Natalya Clark., The First Rape Conviction at the ICC: an Analysis of the Bemba Judgment, Journal of International Criminal Justice, (2016). p.677 354 Janine Natalya Clark., The First Rape Conviction at the ICC: an Analysis of the Bemba Judgment, Journal of International Criminal Justice, (2016). p.676 355 ICC, Trial Chamber III, Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo (Judgment), (21 March 2016), ICC-01/05-01/08, §107 356 Janine Natalya Clark., The First Rape Conviction at the ICC: an Analysis of the Bemba Judgment, Journal of International Criminal Justice, (2016). p.677 357 ICC, Trial Chamber III, Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo (Judgment), (21 March 2016), ICC-01/05-01/08, §102 358 ICC, Trial Chamber III, Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo (Judgment), (21 March 2016), ICC-01/05-01/08, §108 359 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.184 360 Rogers S. Clark., The Mental Element in International Criminal Law: the Rome Statute of the International Criminal Court and the Elements of Offences, Criminal Law Forum, (2001). p.295 361 ICC, Trial Chamber III, Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo (Judgment), (21 March 2016), ICC-01/05-01/08, §111 362 ICC, Trial Chamber III, Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo (Judgment), (21 March 2016), ICC-01/05-01/08, §112 363 ICC, The Appeals Chamber, Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo (Judgment on the Appeal), (8 June 2018), ICC-01/05-01/08 A, p.6 364 Martha M. Bradley & Aniel de Beer, “All Necessary and Reasonable Measures” – The Bemba Case and the Threshold for Command Responsibility, International Criminal Law Review, (2020). p.1 35

4.8 Rape in the Katanga Case The Katanga case was the second trial to arise out of the situation of the Democratic Republic of the Congo and the first to include charges of rape and sexual slavery.365 He was the second Congolese warlord to appear before the ICC.366 As Katanga was charged with rape as a war crime and rape as a crime against humanity367 his case contributed to the jurisprudence on and the development of rape. Similar to the Bemba case, the Katanga Trial Chamber also used the definition of rape as defined in the Elements of Crimes section of the ICC. However, the Chamber in Katanga attributed its own interpretation to both elements.368 To begin with, the Trial Chamber argued that, according to the Elements of Crimes, the crime of rape is established when “the following two common material elements are present: i. The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body

ii. The invasion 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”.369 Whereas the Bemba Trial Chamber particularly focused on the notion of ‘coercive environment’, the Katanga Chamber especially attributed attention to the first material element. The Katanga Chamber held that this element is satisfied “where the perpetrator invaded the body of a person by conduct resulting in penetration, even where the perpetrator does not engage in the act of penetration””.370 The ‘invasion’ element was thus framed in such a way as “to foresee also the eventuality that the perpetrator is penetrated in addition to that of the perpetrator causing or prompting penetration”.371 The Chamber therewith further broadened the scope of the ‘invasion’ element of rape,372 as it also includes the possibility that the perpetrator is penetrated.373 This broad interpretation is in line with the intention of the drafters of the Elements of Crimes section to make the concept of ‘invasion’ broad

365 Bridget Mannix, A Quest for Justice: investigating Sexual and Gender-Based Violence at the International Criminal Court, James Cook University Law Review, (2014-2015). p.19 366 Cecile Aptel & Wambui Mwangi, Developments in International Criminal Justice in Africa during 2008, African Human Rights Law Journal, (2009). p.280 367 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, Nordic Journal of International Law, (2015). p.535 368 ICC, Trial Chamber II, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Germain Katanga (Judgment), (7 March 2014), ICC-01/04-01/07, §963, §965 & §970 369 ICC, Trial Chamber II, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Germain Katanga (Judgment), (7 March 2014), ICC-01/04-01/07, §962 370 ICC, Trial Chamber II, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Germain Katanga (Judgment), (7 March 2014), ICC-01/04-01/07, §963 371 ICC, Trial Chamber III, Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo (Judgment), (21 March 2016), ICC-01/05-01/08, §963 372 ICC, Trial Chamber III, Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo (Judgment), (21 March 2016), ICC-01/05-01/08, §99 & §100 373 ICC, Trial Chamber II, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Germain Katanga (Judgment), (7 March 2014), ICC-01/04-01/07, §963 36 enough to be gender-neutral.374 Nevertheless, ‘penetration’ is still required in order for the conduct to be classified as rape.”375 The second material lists the conditions and circumstances which give the invasion of the body of the victim (or the perpetrator) a criminal character.376 However, the Katanga Chamber, especially took the purpose of this material element into consideration. The Chamber argued that the Elements of Crimes section clearly expresses the intention to ‘punish any act of penetration that is committed under threat of force or of coercion’.377 In addition, the Katanga trial held that the demonstrability of ‘at least one of the coercive circumstances or conditions’ is sufficient to classify the conduct as rape. In doing so, the Chamber applied the same threshold as in Bemba.378 With regard to the notion of consent, the Chamber emphasized that the consent of the victim cannot be inferred by reason of any words or conduct of the victim in cases where coercion or force was used or where the perpetrator took advantage of a coercive environment.379 The required mental element in Katanga is equivalent to the one in Bemba. The Chamber asserted that the crime of rape has to be committed with both intent and knowledge. The Katanga Chamber thus held that the perpetrator must have ‘intentionally invaded the body of the victim’.380 The condition of intent is met where “it is proven that the perpetrator acted deliberately or failed to act a) such that the penetration took place b) or whereas he or she was aware that such a consequence would arise in the ordinary course of events”381 With regard to the required standard of knowledge, the Chamber held that the perpetrator “must have been aware that the invasion was committed by force, threat of force, coercion or by taking advantage of a coercive environment, or that ‘the invasion was committed against a person incapable of giving genuine consent”.382 Although Katanga was found guilty, as an accessory, of four counts of war crimes and one count of crimes against humanity383, he was not convicted for crimes of sexual violence.384 This indicates that, despite the developments in the definition of rape, it remains quite difficult to hold perpetrators of rape accountable for crimes of such nature.

374 ICC, Trial Chamber III, Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo (Judgment), (21 March 2016), ICC-01/05-01/08, §100 375 ICC, Trial Chamber II, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Germain Katanga (Judgment), (7 March 2014), ICC-01/04-01/07, §963 376 ICC, Trial Chamber II, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Germain Katanga (Judgment), (7 March 2014), ICC-01/04-01/07, §964 377 ICC, Trial Chamber II, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Germain Katanga (Judgment), (7 March 2014), ICC-01/04-01/07, §965 378 ICC, Trial Chamber II, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Germain Katanga (Judgment), (7 March 2014), ICC-01/04-01/07, §965 379 ICC, Trial Chamber II, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Germain Katanga (Judgment), (7 March 2014), ICC-01/04-01/07, §966 380 ICC, Trial Chamber II, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Germain Katanga (Judgment), (7 March 2014), ICC-01/04-01/07, §970 381 ICC, Trial Chamber II, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Germain Katanga (Judgment), (7 March 2014), ICC-01/04-01/07, §970 382 ICC, Trial Chamber II, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Germain Katanga (Judgment), (7 March 2014), ICC-01/04-01/07, §970 383 Melanie Klinkner, Is all Fair in Love and War Crimes Trials?: Regulation 55 and the Katanga Case, International Criminal Law Review, (2015). p.400 384 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, Nordic Journal of International Law, (2015). p.536 37

Conclusion The definition of rape has thus made quite a development from its first case up till the Katanga case. In the ICTR Akayesu case, i.e. the first judicial decision in which an international law definition for rape was proposed385, the crime of rape was defined conceptually “as a physical invasion of a sexual nature committed under coercive circumstances”.386 The Trial Chamber in the ICTY Kunarac case, however, argued that other factors which would make an act of sexual penetration non-voluntary or non-consensual on the part of the victim were not included in the definition adopted in Akayesu.387 Consequently, the Appeals Chamber of Kunarac included the concept of non-consent in its own definition388 and essentially defined rape as “requiring proof of the lack of consent to sexual penetration”.389 This contradiction between the ICTR and the ICTY definition led to quite some uncertainty concerning the definition of the crime of rape. This ambiguity, however, was taken away in the Gacumbitsi case390, in which the joint Appeals Chamber of the ICTR and the ICTY held that ‘non-consent and knowledge thereof’ were elements of rape as a crime against humanity.391 The joint Appeals Chamber held that ‘non-consent and the knowledge thereof’ can be proven by the existence of coercive circumstances which make meaningful consent impossible.392 While examining the definition of rape as laid down in the ICC Statute, it becomes evident that the decisions of the ICTR and the ICTR have been instrumental in its creation.393 The ICC Statute holds rape to be “the invasion of the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body”.394 In order to account for the crime of rape, the ICC Statute requires that the invasion 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 by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent”.395 The ICC thus included both the element of coercion and the element of consent in its definition.396 As for the mental element, both ‘intent’ and ‘knowledge’ need to be proven.397 In Bemba, the Trial Chamber concretized the concept of ‘coercive environment’, thereby relying on the ICTR Akayesu case.398 By adopting a broad definition, the Chamber recognized “the multi-layered reality of coercion in situations of armed conflict, and the fact

385 Magdalini Karagiannakis, Case Analysis: the Definition of Rape and its Characterization as an Act of Genocide – a Review of the Jurisprudence of the International Criminal Tribunals for Rwanda and the Former Yugoslavia, Leiden Journal of International Law, (1999). p.481 386 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.56 387 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.61 388 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.61 389 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.56 390 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.56 391 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.56 392 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.72 393 Sergey Y. Marochkin & Galina A. Nelaeva, Rape and Sexual Violence as Torture and Genocide in the Decisions of International Tribunals: Transjudicial Networks of International Criminal Law, Human Rights Review, (8 July 2014). p.473 394 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.225 395 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.225 396 Kas Wachala, The Tools to combat the War on Women’s Bodies: Rape and Sexual Violence against Women in Armed Conflict, The International Journal of Human Rights, (2012). p.543 397 Rogers S. Clark., The Mental Element in International Criminal Law: the Rome Statute of the International Criminal Court and the Elements of Offences, Criminal Law Forum, (2001). p.295 398 Janine Natalya Clark., The First Rape Conviction at the ICC: an Analysis of the Bemba Judgment, Journal of International Criminal Justice, (2016). p.677 38 that it can assume both active (actions) and passive (circumstances) forms”.399 In doing so, the Chamber considered circumstances to be more than just an instrument to assert whether genuine consent is still possible. The Bemba judgment thus reinforced the distinction between consent and circumstances inherent in the Elements of Crimes.400 In Katanga, on the other hand, the Chamber especially attributed attention to the first material element. The Chamber held that this element is satisfied “where the perpetrator invaded the body of a person by conduct resulting in penetration, even where the perpetrator does not engage in the act of penetration”.401 This definition also put forward the possibility that the perpetrator is penetrated.402 With regard to the circumstances, as laid down in the Elements of Crimes, the Chamber took into account the purpose of this second material element. The Chamber held that the Elements of Crimes section clearly expresses the intention to ‘punish any act of penetration that is committed under threat of force or of coercion’.403 Taking the purpose of the second material element into account, the Chamber emphasized that the consent of the victim cannot be inferred by reason of any words or conduct of the victim in cases where coercion or force was used or where the perpetrator took advantage of a coercive environment.404

399 Janine Natalya Clark., The First Rape Conviction at the ICC: an Analysis of the Bemba Judgment, Journal of International Criminal Justice, (2016). p.677 400 Janine Natalya Clark., The First Rape Conviction at the ICC: an Analysis of the Bemba Judgment, Journal of International Criminal Justice, (2016). p.677 401 ICC, Trial Chamber II, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Germain Katanga (Judgment), (7 March 2014), ICC-01/04-01/07, §963 402 ICC, Trial Chamber II, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Germain Katanga (Judgment), (7 March 2014), ICC-01/04-01/07, §963 403 ICC, Trial Chamber II, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Germain Katanga (Judgment), (7 March 2014), ICC-01/04-01/07, §965 404 ICC, Trial Chamber II, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Germain Katanga (Judgment), (7 March 2014), ICC-01/04-01/07, §966 39

Chapter 5: Redefinition of Rape in the Ntaganda Case?

Initially, it was not expected that sexual and gender-based crimes would be addressed in the Ntaganda case. Sexual violence crimes were not among the charges when Prosecutor Ocampo applied an arrest warrant for Ntaganda in 2006. However, ICC’s newly appointed Prosecutor Bensouda was determined to raise more awareness for both atrocities against children and crimes of sexual violence. Consequently, Bensouda amended the charges against Ntaganda. This gave the court the opportunity to emphasize the centrality of the sexual atrocities committed by Ntaganda’s forces. In the end, Ntaganda was charged with thirteen counts of war crimes and five counts of crimes against humanity. Due to Bensouda, the crimes of rape and sexual slavery, committed against both civilians and child soldiers, were included within the charges.405 As illustrated in the previous chapter, significant attention has already been attributed to the international definition of rape. The Ntaganda case offers yet another contribution to the jurisprudence on rape, as Ntaganda was charged with six charges of sexual violence. These charges included four counts of war crimes (rape, rape of child soldiers, sexual slavery of civilians and sexual slavery of child soldiers) and two counts of crimes against humanity (sexual slavery and rape).406 The Ntaganda case thus not only addressed the crime of rape but also the issue of sexual violence against child soldiers.407 But how was rape defined in the Ntaganda case and how does this definition relate to previous jurisprudence on rape? In order to provide a thorough answer to this question, I will first attribute attention to the issue of rape (and other sexual violence) being committed against (female) child soldiers by members of their own military group. Thereafter, I will analyze how rape was defined by the Ntaganda Trial Chamber. Finally, I will examine in what ways the Ntaganda definition is similar and/or dissimilar to the already existent jurisprudence on rape.

5.1 Rape and Child Soldiers In addition to their participation in hostilities, female child soldiers are often used as ‘bush wives’ by their fellow soldiers and commanders. They are then raped and sexually enslaved.408 Even though such situations are worrisome, ‘the use of child soldiers for sexual purposes is [still] not explicitly addressed’ in international criminal law nor in instruments of international humanitarian law (IHL) as pointed out by Grey.409 The use of child soldiers, on the other hand, is regulated by these instruments.410 The Ntaganda case provided the opportunity to address this gap within the legal framework by way of clarifying “the law regarding sexual exploitation of child soldiers, primarily girl soldiers, by members of their own group”.411

405 Jennifer Tridgell, Proecutor v. Ntaganda: the End of Impunity for Sexual Violence against Child Soldiers?, Australian International Law Journal, (2017). p.154 406 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.682 407 Jennifer Tridgell, Prosecutor v Ntaganda: the End of Impunity for Sexual Violence against Child Soldiers, Australian International Law Journal, (2017). p.154 408 Rosemary Grey, Sexual Violence against Child Soldiers: the Limits and Potential of International Criminal Law, International Feminist Journal of Politics, (2014). p.601 409 Rosemary Grey, Sexual Violence against Child Soldiers: the Limits and Potential of International Criminal Law, International Feminist Journal of Politics, (2014). p.602 410 Rosemary Grey, Sexual Violence against Child Soldiers: the Limits and Potential of International Criminal Law, International Feminist Journal of Politics, (2014). p.602 411 Rosemary Grey, Sexual Violence against Child Soldiers: the Limits and Potential of International Criminal Law, International Feminist Journal of Politics, (2014). p.602 40

The issue of sexual violence being committed against girl soldiers first appeared before the Special Court for Sierra Leone (SCSL) and before the prior ICC Lubanga case.412 Prosecutor Ocampo charged Lubanga with the war crimes of ‘conscripting or enlisting children under 15, and using them to participate actively in hostilities’.413 Claiming that the charge of conscription also covered crimes of sexual violence, he neglected to include additional charges of sexual violence. Moreover, he also omitted to present ‘any evidence of sexual violence against girl soldiers when he applied for confirmation of the charges’.414 As a result, the issue of whether the charges could include ‘the use of girl soldiers for sexual purposes’ was not even addressed by the Lubanga Trial Chamber.415 To begin with, Ocampo’s line of reasoning that the charge of ‘using children to participate actively in hostilities’ can cover crimes of sexual violence’ is not without flaws. Firstly, concerns were raised that Ocampo’s argumentation might possibly violate the principle of legality. This principle is enshrined in article 22 of the ICC Statute, and states that individuals cannot be criminally responsible for “conduct which did not constitute a crime within the jurisdiction of the Court at the time it was committed”.416 Secondly, Ocampo’s reasoning seems to go against the rules of International Humanitarian Law. It is laid down in IHL that “persons who actively participate in hostilities lose their protection”.417 If one holds the use of child soldiers for sexual purposes to fall within the scope of ‘using children to participate in hostilities’, this might have serious consequences regarding the protection these girl soldiers enjoy under IHL.418 Based on these two arguments, Ocampo’s approach might not be the most effective way to prosecute the perpetrators for the crimes of sexual violence they committed against female child soldiers of their own armed forces.419 The Pre-Trial Chamber of Ntaganda realized that the Lubanga approach might not be the most effective one to address the issue of sexual violence against child soldiers. Subsequently, the Chamber decided to draw upon the jurisprudence of the SCSL.420 Presented with a case covering this issue, the SCLS would issue two different sets of charges: “one set of charges for the conscription, enlistment and use of child soldiers, and another set of charges for the sexual violence and forced marriage of girls in armed groups”.421 Only the second set of charges is then based on evidence of crimes of sexual violence.422 In line with the SCLS approach, the Pre-Trial Chamber also issued two different

412 Rosemary Grey, Sexual Violence against Child Soldiers: the Limits and Potential of International Criminal Law, International Feminist Journal of Politics, (2014). p.606 & p.608 413 Rosemary Grey, Sexual Violence against Child Soldiers: the Limits and Potential of International Criminal Law, International Feminist Journal of Politics, (2014). p.606 414 Rosemary Grey, Sexual Violence against Child Soldiers: the Limits and Potential of International Criminal Law, International Feminist Journal of Politics, (2014). p.606-607 415 Rosemary Grey, Sexual Violence against Child Soldiers: the Limits and Potential of International Criminal Law, International Feminist Journal of Politics, (2014). p.606-607 416 Rosemary Grey, Sexual Violence against Child Soldiers: the Limits and Potential of International Criminal Law, International Feminist Journal of Politics, (2014). p.607 417 Rosemary Grey, Sexual Violence against Child Soldiers: the Limits and Potential of International Criminal Law, International Feminist Journal of Politics, (2014). p.607 418 Rosemary Grey, Sexual Violence against Child Soldiers: the Limits and Potential of International Criminal Law, International Feminist Journal of Politics, (2014). p.607 419 Rosemary Grey, Sexual Violence against Child Soldiers: the Limits and Potential of International Criminal Law, International Feminist Journal of Politics, (2014). p.608 420 Rosemary Grey, Sexual Violence against Child Soldiers: the Limits and Potential of International Criminal Law, International Feminist Journal of Politics, (2014). p.609 421 Rosemary Grey, Sexual Violence against Child Soldiers: the Limits and Potential of International Criminal Law, International Feminist Journal of Politics, (2014). p.608 422 Rosemary Grey, Sexual Violence against Child Soldiers: the Limits and Potential of International Criminal Law, International Feminist Journal of Politics, (2014). p.608 41 sets of charges.423 Subsequently, the Ntaganda case distinguished between two different groups of victims of rape: civilians and (girl) child soldiers.424 In order to include the charge of ‘sexual violence of girls in armed groups’, the Pre-Trial Chamber argued that “the rape and sexual slavery of girl soldiers in Ntaganda’s armed group by other members of the group could constitute war crimes under article 8(2)(e)(vi) of the Rome Statute”.425 In essence, the Prosecution argued that “the general protection of persons affected by non-international armed conflicts from sexual violence under International Humanitarian Law”426 does apply to child soldiers. The Prosecution provided two arguments to support this assertion. To begin with, the Chamber held that “persons taking no active part in the hostilities shall in all circumstances be treated humanely” as laid down in Common article 3 of the Geneva Conventions.427 On the basis of this legislation, the Pre-Trial Chamber argued that “the sexual nature of these crimes, which involve elements of force/coercion or the exercise of rights of ownership, logically preclude active participation in hostilities at the same time”.428 Secondly, the Pre-Trial Chamber held that child soldiers are granted special protection under article 4(3)(c) of the Additional Protocol because of their vulnerability.429 Section (d) of that article holds that “the special protection provided (by this article) to children who have not attained the age of fifteen years shall remain applicable to them if they take a direct part in hostilities”.430 Based on these two articles, the Chamber held that “the rape and sexual slavery of girl soldiers in Ntaganda’s armed group by other members of that group could constitute war crimes under article 8(2)(e)(vi) of the Rome Statute”.431 It should be noted, however, that with regard to article 4(3)(d) of Additional Protocol II of the Geneva Conventions, the Trial Chamber decided only to include those cases in which rape was committed by UPC/FPLC soldiers against members of their own group that where under the age of fifteen at the time of the rape(s).432 5.2 Rape in the Ntaganda Case The ICC thus held that the rape of girl soldiers in Ntaganda’s armed group by other members of that group could indeed constitute war crimes.433 Subsequently, the female child soldiers were thus held to fall under the scope of the legislation on rape used in the Ntaganda case. In my analysis of the definition applied in Ntaganda, it should thus be kept in mind that that definition was used to hold perpetrators of rape accountable for their conduct, irrespective whether the victim was a civilian or a (female) child soldier.434

423 Rosemary Grey, Sexual Violence against Child Soldiers: the Limits and Potential of International Criminal Law, International Feminist Journal of Politics, (2014). p.609 424 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda, (Sentencing Judgment), (7 November 2019), ICC-01/04-02/06, §90 425 Rosemary Grey, Sexual Violence against Child Soldiers: the Limits and Potential of International Criminal Law, International Feminist Journal of Politics, (2014). p.601 426 Anna Kuniewicz, Case: International Criminal Court Prosecutor v. Bosco Ntaganda, Chicago-Kent Journal of International and Comparative Law, (2015). p.7 427 Anna Kuniewicz, Case: International Criminal Court Prosecutor v. Bosco Ntaganda, Chicago-Kent Journal of International and Comparative Law, (2015). p.7 428 Jennifer Tridgell, Prosecutor v Ntaganda: the End of Impunity for Sexual Violence against Child Soldiers, Australian International Law Journal, (2017). p.155 429 Anna Kuniewicz, Case: International Criminal Court Prosecutor v. Bosco Ntaganda, Chicago-Kent Journal of International and Comparative Law, (2015). p.7 430 Anna Kuniewicz, Case: International Criminal Court Prosecutor v. Bosco Ntaganda, Chicago-Kent Journal of International and Comparative Law, (2015). p.7 431 Rosemary Grey, Sexual Violence against Child Soldiers: the Limits and Potential of International Criminal Law, International Feminist Journal of Politics, (2014). p.601 432 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda, (Sentencing Judgment), (7 November 2019), ICC-01/04-02/06, §108 433 Rosemary Grey, Sexual Violence against Child Soldiers: the Limits and Potential of International Criminal Law, International Feminist Journal of Politics, (2014). p.601 434 Tilman Rodenhäuser, Squaring the Circle? Prosecuting Sexual Violence against Child Soldiers by their ‘Own Forces’, Journal of International Criminal Justice, (2016). p.178 42

The Prosecutor charged Ntaganda with both rape as a war crime and rape as a crime against humanity.435 The Trial Chamber therefore commenced by disclosing the legal elements for both of these ‘core crimes’. The Chamber held the material elements of ‘rape as a crime against humanity’ to be: 1. “the perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body

2. the invasion 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”.436 As became evident in the previous chapter, these two material elements are laid down in the Elements of Crimes Section of the ICC Statute. While addressing the crime of rape, the Ntaganda Chamber thus draws upon the definition of rape in the Elements of Crimes.437 I would like to clarify once more that the material elements are the same for both ‘rape as a crime against humanity’ and ‘rape as a war crime’’.438 In Chapter 3, I already provided a detailed analysis of the contextual element of ‘crimes against humanity’. I will therefore only briefly mention the contextual element here. In order for a crime to be classified as a ‘crime against humanity’ the conduct had to be “committed as part of a widespread or systematic attack directed against a civilian population”.439 On the basis of this contextual element, the Chamber formulated the required mental elements as follows: 1. “the perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population

2. the perpetrator’s conduct was deliberate and the perpetrator: i. meant to cause the consequence, or ii. was aware that it would occur in the ordinary course of events”440 The elements of ‘knowledge’ and ‘consent’ were thus adjusted to the contextual element inherent to crimes against humanity. As for war crimes, the Chamber required that in order for a crime to be classified as a ‘war crime’, the prohibited conduct must have taken place “in the context of and was associated with an armed conflict not of an international character”.441 The phrase ‘not of an international character’ was specifically incorporated by the Trial Chamber. As Ntaganda was one of the most high-ranking commanders of the Union des Patriotes Congolais-Forces Patriotiques

435 Jennifer Tridgell, Prosecutor v Ntaganda: the End of Impunity for Sexual Violence against Child Soldiers, Australian International Law Journal, (2017). p.154 436 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda (Judgment), (8 July 2019), ICC- 01/04-02/06. §931 437 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.225 438 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda (Judgment), (8 July 2019), ICC- 01/04-02/06. §931 & §932 439 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.243 440 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda (Judgment), (8 July 2019), ICC- 01/04-02/06. §931 441 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda (Judgment), (8 July 2019), ICC- 01/04-02/06. §932 43 pour la libération du Congo (UPC-FPLC)442, the Chamber focused on the atrocities committed by this militia in order to assert whether the war crimes should be classified as part of an international or non-international armed conflict. The Chamber based its categorization on two findings. Firstly, the Chamber argued that the conduct should be classified as part of a non-international armed conflict as there was no direct evidence available to establish that the UPC-FPLC was fighting on behalf of or under the overall control of a State. In addition, the Chamber could not establish that the fighting, that took place within the area of the DRC, was under the effective control of the Ugandan armed forces (UPDF). Consequently, the Chamber classified the conduct as being part of a non- international armed conflict.443 Just like the Chamber did with regard to ‘crimes against humanity’, the contextual element of war crimes was also taken into in the formulation of the required mental elements of ‘rape as a war crime’. The Chamber held these to be: 1. the perpetrator was ‘aware of the factual circumstances that established the existence of an armed conflict’444

2. “the perpetrator’s conduct was deliberate and the perpetrator i. meant to cause the consequence, or ii. was aware that it would occur in the ordinary course of events”445 The Chamber argued that the term ‘invasion’, which is part of the legal elements of both ‘rape as a war crime’ and ‘rape as a crime against humanity’, was intended to be ‘broad enough to be gender-neutral’.446 Subsequently, the Chamber recognizes that the Court’s legal framework encompasses perpetrators which can be both male and female and victims which can be both male and female. Also same-sex penetration is considered to fall within the scope of the concept of ‘invasion’.447 Secondly, the Chamber directed its attention to the term ‘coercive circumstances’, inherent to the second material element included in the legal elements of both ‘rape as a war crime’ and ‘rape as a crime against humanity’. The Chamber held that extortion, threats, intimidation and other forms of duress which prey on desperation and fear may all constitute coercion. The Chamber also acknowledged that ‘coercion may be inherent in certain circumstances’. Examples of such circumstances include ‘the military presence of hostile forces amongst the civilian population’ or the existence of an armed conflict.448 On top of that, the Chamber recognized that other additional factors may contribute to the creation of a coercive environment (e.g. the rape being committed together with other crimes, the number of people

442 Rosemary Grey, Sexual Violence against Child Soldiers: the Limits and Potential of International Criminal Law, International Feminist Journal of Politics, (2014). p.609 443 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda (Judgment), (8 July 2019), ICC- 01/04-02/06. §728 444 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda (Judgment), (8 July 2019), ICC- 01/04-02/06. §932 445 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda (Judgment), (8 July 2019), ICC- 01/04-02/06. §932 446 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda (Judgment), (8 July 2019), ICC- 01/04-02/06. §933 447 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda (Judgment), (8 July 2019), ICC- 01/04-02/06. §933 448 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda (Judgment), (8 July 2019), ICC- 01/04-02/06. §935 44 involved in the commission of the crime or if the rape is committed immediately following or during a combat situation).449 With this broad interpretation, the Chamber took the purpose of the ‘Elements of Crimes’ section into account. The Chamber recognized that the ‘Elements of Crimes’ clearly seek to “punish any act of penetration where committed under threat of force or coercion, such as that caused by the threat of violence, duress, detention, psychological pressure or abuse of power or, more generally, any act of penetration taking advantage of a coercive environment”.450 The Ntaganda Chamber held that the establishment of one of the coercive circumstances is sufficient ‘for penetration to amount to rape’.451 However, the mere existence of a coercive environment is not sufficient to satisfy the second material element. The Chamber determined that it must also “be proven that the perpetrator’s conduct involved ‘taking advantage’ of such a coercive environment”.452 With regard to the notion of ‘consent’, inherent in the mental element of both ‘rape as a crime against humanity’ and ‘rape as a war crime’, the Chamber argued that the victim’s lack of consent does not have to be proven. The Chamber supported this line of reasoning by emphasizing that the Elements of Crimes section does not specifically refer to the victim’s lack of consent, apart from “the very specific situation of a person whose ‘incapacity’ was ‘taken advantage of’”.453

5.3 Ntaganda Compared with Previous Cases Following its formulated definition, as described in the previous section, the Trial Chamber found Ntaganda guilty of all six charges of sexual violence.454 The Ntaganda case, therewith, became the first case in which the ICC managed to hold an individual criminally responsible for the crime of rape.455 Following this great achievement, the question arsis how the Ntaganda definition of rape relates to those used in previous cases involving the crime of rape. In what respect is the Ntaganda definition similar and/or dissimilar to the definitions applied in those cases? As became clear in the previous section, the Ntaganda Chamber drew upon the definition of rape laid down in the Elements of Crimes section of the Rome Statute, as did the Trial Chambers of the Bemba and Katanga cases.456 However, each Chamber interprets this definition in the way it sees fit. Therefore, I would like to begin by attributing some attention to the first material element of the crime of rape: “the perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of

449 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda (Judgment), (8 July 2019), ICC- 01/04-02/06. §935 450 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda (Judgment), (8 July 2019), ICC- 01/04-02/06. §934 451 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda (Judgment), (8 July 2019), ICC- 01/04-02/06. §934 452 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda (Judgment), (8 July 2019), ICC- 01/04-02/06. §935 453 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda (Judgment), (8 July 2019), ICC- 01/04-02/06. §934 454 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda, (7 November 2019), ICC-01/04- 02/06, p.117 455 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda, (7 November 2019), ICC-01/04- 02/06, p.117 456 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.225 45 the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body””.457 The ‘invasion’ requirement was also addressed in the ICC Katanga case. The Chamber therein held that this requirement is met “where the perpetrator invaded the body of a person by conduct resulting in penetration, even where the perpetrator does not engage in the act of penetration”.458 The possibility that the perpetrator, instead of the victim, is penetrated is thus also considered to be an option within this definition.459 In line with the Katanga judgment, the Ntaganda Trial also held that the drafters of the Elements of Crimes section on rape also intended the concept of ‘invasion’ to be “broad enough to be gender-neutral”.460 Consistent with that reasoning, the Ntaganda Chamber held that the ICC’s legal framework opts that the perpetrators can be both male or female. The same applies for the victim(s) of rape. Moreover, the Chamber held that same-sex penetration also falls within the scope of the notion of ‘invasion’’.461 In the ICTY Furundžija case, the Trial Chamber argued that oral penetration (i.e. the ‘invasion’ of the victims mouth by a sexual organ) should be classified as rape as well.462 Also Bemba’s Trial Chamber argued that oral penetration is meant to fall within the scope of the definition of rape, as the phrase ‘of any other part of the body’ is incorporated in the first material element.463 In the Ntaganda case, however, the question whether oral penetration does or does not fall within the scope of the crime of rape is not addressed by the Chamber.464 As I explained in the previous chapter, the first element alone does not give the ‘penetration’ its criminal character.465 Therefore, attention should also be attributed to the second material element: “the invasion of the body is 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”.466 It is evident that the decisions of both the ICTR and the ICTY have been instrumental in the formulation of this second criteria.467 The notion of ‘coercion’ was first addressed in the ICTR Akayesu case. The Akayesu Chamber aimed to create a definition that entailed ‘only the essential aspects of the crime of rape’.468 Eventually, it defined rape as “a physical invasion of a sexual nature, committed on

457 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.225 458 ICC, Trial Chamber II, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Germain Katanga (Judgment), (7 March 2014), ICC-01/04-01/07, §963 459 ICC, Trial Chamber II, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Germain Katanga (Judgment), (7 March 2014), ICC-01/04-01/07, §963 460 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda (Judgment), (8 July 2019), ICC- 01/04-02/06. §933 461 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda (Judgment), (8 July 2019), ICC- 01/04-02/06. §933 462 Magdalini Karagiannakis, Case Analysis: the Definition of Rape and its Characterization as an Act of Genocide – a Review of the Jurisprudence of the International Criminal Tribunals for Rwanda and the Former Yugoslavia, Leiden Journal of International Law, (1999). p.484 463 ICC, Trial Chamber III, Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo (Judgment), (21 March 2016), ICC-01/05-01/08, §100 464 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda (Judgment), (8 July 2019), ICC- 01/04-02/06. §930-§935 465 ICC, Trial Chamber III, Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo (Judgment), (21 March 2016), ICC-01/05-01/08, §108 466 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.225 467 Sergey Y. Marochkin & Galina A. Nelaeva, Rape and Sexual Violence as Torture and Genocide in the Decisions of International Tribunals: Transjudicial Networks of International Criminal Law, Human Rights Review, (8 July 2014). p.473 468 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.57 46 a person under circumstances which are coercive”. 469 The Akayesu Chamber held rape to be more than just ‘physical force’. Also intimidation, threats extortion and other forms of duress, e.g. the presence of armed militants or the existence of an armed conflict were considered to fall within the scope of the term ‘coercive’. 470 In Katanga, the Trial Chamber followed the line of reasoning of Akayesu and considered the scope of the term ‘coercion’ to be broader than just ‘physical force’.471 Subsequently, the Ntaganda Trial Chamber also held that ‘extortion, threats, intimidation and other forms of duress which prey on desperation and fear’ may all also constitute coercion.472 The Trial Chamber of the Bemba case elaborated on the concept of ‘coercive circumstances’.473 Drawing on the Akayesu judgment, the Trial Chamber of Bemba argued that coercive circumstances are not limited to physical force.474 The Chamber acknowledged that multiple other factors, such as the number of persons involved in the commission of the crime or the whether the rape was committed together with other crimes, etc., could contribute to the creation of a coercive environment.475 Moreover, the Bemba Chamber clarified that the court must be able to prove that “the perpetrator’s conduct involved ‘taking advantage’ of the coercive environment”, in addition to the existence of a ‘coercive environment’.476 The Ntaganda Chamber followed this line of reasoning and also adopted a broad interpretation for the term ‘coercive circumstances’.477 Also the Bemba standard of proof was taken up by Ntaganda’s Chamber. Consequently, apart from the mere existence of ‘coercive circumstances’ it “must also be proven that the perpetrator’s conduct involved ‘taking advantage’ of the coercive environment”.478 The element of ‘non-consent’ on the part of the victim was first raised in the ICTY Kunarac case. The Kunarac Chamber argued that other factors which would make an act of sexual penetration non-voluntary or non-consensual had to be included in the definition as well.479 Subsequently, the Trial Chamber held rape to be “sexual penetration […] where such penetration occurs without the consent of the victim”.480 The later Gacumbitsi and Čelebići cases further elaborated on the notion of ‘consent’. The joint Appeals Chamber of the ICTY and the ICTR held in the Gacumbitsi case that non- consent and the knowledge thereof may be proved on the basis of the existence of coercive circumstances which make meaningful consent impossible.481 In Čelebići the ICTY even held

469 Magdalini Karagiannakis, Case Analysis: the Definition of Rape and its Characterization as an Act of Genocide – a Review of the Jurisprudence of the International Criminal Tribunals for Rwanda and the Former Yugoslavia, Leiden Journal of International Law, (1999). p.481 470 Diana Maria Amann, Prosecutor v. Akayesu Case ICTR-96-4-T, The American Journal of International Law, (January 1999). p.197 471 ICC, Trial Chamber III, Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo (Judgment), (21 March 2016), ICC-01/05-01/08, §103 472 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda (Judgment), (8 July 2019), ICC- 01/04-02/06. §935 473 Janine Natalya Clark., The First Rape Conviction at the ICC: an Analysis of the Bemba Judgment, Journal of International Criminal Justice, (2016). p.677 474 ICC, Trial Chamber III, Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo (Judgment), (21 March 2016), ICC-01/05-01/08, §103 475 ICC, Trial Chamber III, Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo (Judgment), (21 March 2016), ICC-01/05-01/08, §104 476 ICC, Trial Chamber III, Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo (Judgment), (21 March 2016), ICC-01/05-01/08, §104 477 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda (Judgment), (8 July 2019), ICC- 01/04-02/06. §935 478 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda (Judgment), (8 July 2019), ICC- 01/04-02/06. §935 479 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.61 480 Cherie Booth & Max du Plessis, The International Criminal Court and Victims of Sexual Violence, South African Journal of Criminal Justice, (2005). p.250 481 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.72 47 that there’s always non-consent in case of actual, feared or threatened violence, detention, duress or psychological oppression against the victim or a third person.482 Next to the international criminal tribunals, the ICC also attributed attention to the concept of ‘consent’. The Katanga Trial Chamber emphasized that the consent of the victim cannot be inferred by reason of any words or conduct of the victim in cases where coercion or force was used or where the perpetrator took advantage of a coercive environment.483 The Trial Chamber in Bemba, however, took a different avenue as it stressed that ‘certain categories of people may be fundamentally unable to give consent, whatever the circumstances’.484 Therefore, the Chamber held that the non-consent of the victim is sufficiently proven if the Prosecution is able to prove that “the victim’s capacity to give genuine consent was affected by natural, induced or age-related incapacity”.485 The Bemba Chamber, therewith, appears to draw a clear distinction between consent and circumstances.486 The Ntaganda, on its turn, appears to follow the avenue taken in Bemba. The Chamber argued that as the Elements of Crimes section does not specifically refer to the victim’s lack of consent, apart from “the very specific situation of a person whose ‘incapacity’ was ‘taken advantage of’”, a victim’s lack of consent does not have to be proven”.487 The Trial Chambers of both Bemba and Katanga held that the demonstrability of ‘of at least one of the coercive circumstances or conditions’ is sufficient to classify the conduct as rape.488 The Ntaganda Chamber adopted this standard when it held that the establishment of one of the coercive circumstances is sufficient ‘for penetration to amount to rape’.489 However, in contrast with Bemba, the Katanga Trial Chamber particularly took notice of the purpose the drafters of the Elements of Crimes sections intended the legislation on rape to have. Therefore, the Chamber held that the material elements were intended to “punish any act of penetration that is committed under threat of force or of coercion”.490 The Ntaganda Trial Chamber adopted the argumentation of the Katanga Chamber and argued that the Elements of Crimes is designed to “punish any act of penetration where committed under threat of force or coercion, such as that caused by the threat of violence, duress, detention, psychological pressure or abuse of power or, more generally, any act of penetration taking advantage of a coercive environment”.491 Finally, it should be noted that the Ntaganda Trial Chamber widened the scope of article 8(2)(e)(vi) of the Rome Statute while addressing the crime of rape. In response to the instances of rape of the child soldiers that were brought before the court the Chamber held that ‘the rape and sexual slavery of girl soldiers in Ntaganda’s armed group by other

482 Magdalini Karagiannakis, Case Analysis: the Definition of Rape and its Characterization as an Act of Genocide – a Review of the Jurisprudence of the International Criminal Tribunals for Rwanda and the Former Yugoslavia, Leiden Journal of International Law, (1999). p.485 483 ICC, Trial Chamber II, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Germain Katanga (Judgment), (7 March 2014), ICC-01/04-01/07, §966 484 Janine Natalya Clark., The First Rape Conviction at the ICC: an Analysis of the Bemba Judgment, Journal of International Criminal Justice, (2016). p.677 485 ICC, Trial Chamber III, Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo (Judgment), (21 March 2016), ICC-01/05-01/08, §107 486 Janine Natalya Clark., The First Rape Conviction at the ICC: an Analysis of the Bemba Judgment, Journal of International Criminal Justice, (2016). p.676 487 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda (Judgment), (8 July 2019), ICC- 01/04-02/06. §934 488 ICC, Trial Chamber II, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Germain Katanga (Judgment), (7 March 2014), ICC-01/04-01/07, §965 489 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda (Judgment), (8 July 2019), ICC- 01/04-02/06. §934 490 ICC, Trial Chamber II, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Germain Katanga (Judgment), (7 March 2014), ICC-01/04-01/07, §965 491 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda (Judgment), (8 July 2019), ICC- 01/04-02/06. §934 48 members of the group’ could constitute war crimes.492 In contrast with Lubanga, the Ntaganda Trial Chamber used two different sets of charges to hold Ntaganda liable for the rapes of the female child soldiers of the UPC/FPLC committed by members of Ntaganda’s militia.493 Contrary to Ocampo, the Ntaganda Chamber did not consider the use of child soldiers for sexual purposes to fall within the scope of ‘using children to participate in hostilities’.494 As a result, the rapes against girl soldiers was addressed in Ntaganda495 and he was indeed convicted for that crime.496

Conclusion Up until the Ntaganda case, a lot of attention had already been attributed to the formulation of a definition of the crime of rape. While addressing the crime of rape, the Ntaganda Trial Chamber relied on the definition of rape as laid down in the Elements of Crimes section of the Rome Statute.497 The Elements of Crimes hold rape to be the invasion of “the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body.”498 This conduct amount to rape when “the invasion 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”.499 In Ntaganda, the Trial Chamber interpreted the definition in the way the Chamber deemed appropriate and therewith added to the jurisprudence on rape. To begin with, the Ntaganda Chamber drew upon the prior Katanga case with regard to the term ‘invasion’. Similar to Katanga, the Chamber insisted that the term should be interpreted in such a way that it would be ‘broad enough to be gender-neutral’.500 However, whereas the ICTY in Furundžija501 and the ICC in the prior Bemba case argued that oral penetration should fall under the scope of the concept of ‘invasion’ as well,502 the Ntaganda Chamber did not address this issue in its judgment.503 In line with the ICTR Akayesu case504 and the prior ICC Bemba case505, the Ntaganda Chamber recognized that the concept of ‘coercion’ comprised more than just ‘physical force’.

492 Rosemary Grey, Sexual Violence against Child Soldiers: the Limits and Potential of International Criminal Law, International Feminist Journal of Politics, (2014). p.601 493 Rosemary Grey, Sexual Violence against Child Soldiers: the Limits and Potential of International Criminal Law, International Feminist Journal of Politics, (2014). p.609 494 Rosemary Grey, Sexual Violence against Child Soldiers: the Limits and Potential of International Criminal Law, International Feminist Journal of Politics, (2014). p.607 495 Jennifer Tridgell, Prosecutor v Ntaganda: the End of Impunity for Sexual Violence against Child Soldiers, Australian International Law Journal, (2017). p.154 496 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda, (7 November 2019), ICC-01/04- 02/06, p.117 497 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.225 498 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.225 499 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.225 500 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda (Judgment), (8 July 2019), ICC- 01/04-02/06. §933 501 Magdalini Karagiannakis, Case Analysis: the Definition of Rape and its Characterization as an Act of Genocide – a Review of the Jurisprudence of the International Criminal Tribunals for Rwanda and the Former Yugoslavia, Leiden Journal of International Law, (1999). p.484 502 ICC, Trial Chamber III, Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo (Judgment), (21 March 2016), ICC-01/05-01/08, §100 503 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda (Judgment), (8 July 2019), ICC- 01/04-02/06. §930-§935 504 Diana Maria Amann, Prosecutor v. Akayesu Case ICTR-96-4-T, The American Journal of International Law, (January 1999). p.197 505 ICC, Trial Chamber III, Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo (Judgment), (21 March 2016), ICC-01/05-01/08, §102 49

The Chamber held that “extortion, threats, intimidation and other forms of duress which prey on desperation and fear” may also constitute coercion.506 With regard to the notion of ‘coercive circumstances’ the Ntaganda Chamber followed the line of reasoning applied in Bemba507 and opted for a broad interpretation.508 With regard to the second material element, the Ntaganda Chamber held that the mere existence of a ‘coercive environment’ is not sufficient for penetration to amount to rape.509 It therewith followed the Bemba case, in which the Trial Chamber also held that in addition to the existence of ‘coercive circumstances’ it also has to be proven that ‘the perpetrator’s conduct involved ‘taking advantage’ of the coercive environment’.510 In contrast with previous jurisprudence on the crime of rape,511 the Ntaganda Chamber held that the victim’s lack of consent does not explicitly have to be proven before the court.512 Similar to Katanga513, the purpose of the drafters of the Elements of Crimes section on rape was taken into account. The Ntaganda Chamber held that the drafters intended to “punish any act of penetration where committed under threat of force or coercion, such as that caused by the threat of violence, duress, detention, psychological pressure or abuse of power, or, more generally, any act of penetration taking advantage of a coercive environment”.514 In the end, that was what the Chamber did when it convicted Mr. Ntaganda (as an indirect co-perpetrator) for rape as a war crime and rape as a crime against humanity.515

506 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda (Judgment), (8 July 2019), ICC- 01/04-02/06. §935 507 ICC, Trial Chamber III, Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo (Judgment), (21 March 2016), ICC-01/05-01/08, §104 508 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda (Judgment), (8 July 2019), ICC- 01/04-02/06. §935 509 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda (Judgment), (8 July 2019), ICC- 01/04-02/06. §935 510 ICC, Trial Chamber III, Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo (Judgment), (21 March 2016), ICC-01/05-01/08, §104 511 Cherie Booth & Max du Plessis, The International Criminal Court and Victims of Sexual Violence, South African Journal of Criminal Justice, (2005). p.250 512 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda (Judgment), (8 July 2019), ICC- 01/04-02/06. §934 513 ICC, Trial Chamber II, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Germain Katanga (Judgment), (7 March 2014), ICC-01/04-01/07, §965 514 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda (Judgment), (8 July 2019), ICC- 01/04-02/06. §934 515 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda, (7 November 2019), ICC-01/04- 02/06, p.117 50

Chapter 6: Conclusion

As this thesis aimed to illustrate, the international criminal definition of the crime of rape has made quite a development from the 1990s to the Ntaganda case. The Ntaganda case, on itself, also significantly contributed to the development of the definition of rape as the Ntaganda Trial Chamber further broadened the scope of the crime of rape. Whereas little to not attention had been attributed to sexual and gender-based violence (by the legal field) before the 1990’s,516 both sexual and gender-based offences are now recognized as crimes against humanity and war crimes before the ICC.517 The basis for the Ntaganda definition of rape was laid by the International Criminal Tribunal of Rwanda and the International Criminal Tribunal for the former Yugoslavia. As no previous court had established a definition of rape, the ICTR Akayesu case became the first to ‘propose an international law definition for rape’.518 With this task at hand, the Akayesu Chamber wanted to create a definition that provided solely the ‘essential aspects of the crime’.519 Consequently, the Chamber defined rape as “a physical invasion of a sexual nature, committed on a person under circumstances which are coercive”.520 As noted by Amann, the notion of ‘coercion’ was held to be more than just ‘physical force’.521 The ICTR Akayesu case thus introduced the element of ‘coercion’. Whereas the Furundžija Chamber formulated a definition of rape which included both the requirement of coercion (or force) and a list of acts,522 the ICTY Kunarac Appeals Chamber formulated a definition which included the element of ‘non-consent’.523 The notion of consent inherent to the Kunarac definition of rape holds that the victim must have consented out of his or her own free will.524 The ICTY Čelebići Judgment then provided further guidance on the circumstances which render voluntary consent impossible. The Čelebići case therewith established an important threshold for the defense of consent.525 The ICTR and the ICTY thus both significantly contributed to the development of a definition of rape under international criminal law. The ICC ‘Elements of Crimes’ section, has clearly drawn on the jurisprudence of the ICTR and the ICTY.526 Before the ICC, rape is held to be “the invasion of the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body”.527 The invasion must have been “committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention,

516 Sergey Y. Marochkin & Galina A. Nelaeva, Rape and Sexual Violence as Torture and Genocide in the Decisions of International Tribunals: Transjudicial Networks of International Criminal Law, Human Rights Review, (8 July 2014). p.476 517 Anna Kuniewicz, Case: International Criminal Court Prosecutor v. Bosco Ntaganda, Chicago-Kent Journal of International and Comparative Law, (2015). p.5 518 Magdalini Karagiannakis, Case Analysis: the Definition of Rape and its Characterization as an Act of Genocide – a Review of the Jurisprudence of the International Criminal Tribunals for Rwanda and the Former Yugoslavia, Leiden Journal of International Law, (1999). p.481 519 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.57 520 Magdalini Karagiannakis, Case Analysis: the Definition of Rape and its Characterization as an Act of Genocide – a Review of the Jurisprudence of the International Criminal Tribunals for Rwanda and the Former Yugoslavia, Leiden Journal of International Law, (1999). p.481 521 Diana Maria Amann, Prosecutor v. Akayesu Case ICTR-96-4-T, The American Journal of International Law, (January 1999). p.197 522 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.60 523 Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review, (2008). p.61 524 Cherie Booth & Max du Plessis, The International Criminal Court and Victims of Sexual Violence, South African Journal of Criminal Justice, (2005). p.250 525 Magdalini Karagiannakis, Case Analysis: the Definition of Rape and its Characterization as an Act of Genocide – a Review of the Jurisprudence of the International Criminal Tribunals for Rwanda and the Former Yugoslavia, Leiden Journal of International Law, (1999). p.485 526 Cherie Booth & Max du Plessis, The International Criminal Court and Victims of Sexual Violence, South African Journal of Criminal Justice, (2005). p.252 527 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.225 51 psychological oppression, or abuse of power, against such person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent”.528 Both the element of ‘coercion’, inherent to the ICTR Akayesu definition, and the element of ‘consent’, inherent to the ICTY Kunarac case 529 are thus included in the ICC definition of rape. Even though the definition of rape as laid down in the ‘Elements of Crimes’ section is applicable in all cases (involving the crime of rape) before the ICC, the Trial Chambers of each case still significantly contribute to the development of the definition of rape through their own interpretation and formulation of this definition. The Bema judgment, as noted by Clark, particularly added to the “extant case law through its discussion of the term ‘coercive environment’”.530 With the ICTR Akayesu judgment in mind,531 The Bemba Chamber held the term ‘coercion’ to be more than just ‘physical force’ and argued that ‘coercion’ also covered threat extortion, intimidation, and other forms of duress, e.g. the presence of armed militants or the existence of an armed conflict.532 As for the ICTY element of ‘consent’, the Bemba Chamber held reasoned that a victim’s free will may be overpowered by coercive circumstances.533 The Katanga case, on the other hand, particularly focused on the first part of the material element: “rape requires the ‘invasion’ of a person’s body by “conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body”.534 The Katanga Chamber further broadened the scope of the ‘invasion’ element as it held that that material element is satisfied “where the perpetrator invaded the body of a person by conduct resulting in penetration, even where the perpetrator does not engage in the act of penetration”.535 The Chamber thus framed the ‘invasion’ element in such a way as “to foresee also the eventuality that the perpetrator is penetrated in addition to that of the perpetrator causing or prompting penetration”.536 With regard to the element of ‘consent’, the Chamber held that the consent of the victim cannot be inferred by reason of any words or conduct of the victim in cases where coercion or force was used or where the perpetrator took advantage of a coercive environment.537 The jurisprudence previous to the ICC Ntaganda case thus already made multiple alterations and significant contributions to the international criminal definition of the crime of rape. The Ntaganda case on its turn, delivered its own contribution by further broadening the scope of the crime of rape. The Trial Chamber did so on two instances. To begin with, the Chamber held that “the rape and sexual slavery of girl soldiers in Ntaganda’s armed group by other members of the group could constitute war crimes under article 8(2)(e)(vi) of the Rome

528 Douglas Guilfoyle, International Criminal Law, Oxford University Press, (2016). p.225 529 Kas Wachala, The Tools to combat the War on Women’s Bodies: Rape and Sexual Violence against Women in Armed Conflict, The International Journal of Human Rights, (2012). p.543 530 Janine Natalya Clark., The First Rape Conviction at the ICC: an Analysis of the Bemba Judgment, Journal of International Criminal Justice, (2016). p.677 531 Janine Natalya Clark., The First Rape Conviction at the ICC: an Analysis of the Bemba Judgment, Journal of International Criminal Justice, (2016). p.677 532 Diana Maria Amann, Prosecutor v. Akayesu Case ICTR-96-4-T, The American Journal of International Law, (January 1999). p.197 533 Janine Natalya Clark., The First Rape Conviction at the ICC: an Analysis of the Bemba Judgment, Journal of International Criminal Justice, (2016). p.676 534 ICC, Trial Chamber III, Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo (Judgment), (21 March 2016), ICC-01/05-01/08, §99 535 ICC, Trial Chamber II, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Germain Katanga (Judgment), (7 March 2014), ICC-01/04-01/07, §963 536 ICC, Trial Chamber III, Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo (Judgment), (21 March 2016), ICC-01/05-01/08, §963 537 ICC, Trial Chamber II, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Germain Katanga (Judgment), (7 March 2014), ICC-01/04-01/07, §966 52

Statute”.538 The Ntaganda Chamber thereby broadened the scope of ‘rape as a war crime’ and enabled the court to hold every perpetrator of the crime of rape accountable, regardless whether the victim was a civilian or a member of an armed group. Secondly, the court removed an important impediment in the prosecution of the crime of rape when it held that the victim’s lack of consent no longer explicitly has to be proven during trial. The Chamber based this decision on the content of the ‘Element of Crimes’ section.539 Because the ‘Elements of Crimes’ section does not specifically refer to the victims lack of consent, apart from “the very specific situation of a person whose ‘incapacity’ was taken advantage of”,540 the Ntaganda Chamber did not deem it necessary for the Prosecution to provide explicit proof of the victim’s non-consent.541 From a gender-based perspective, Ntaganda’s conviction for the 6 charges of sexual violence542 can be seen as a victory for all the victims of sexual violence. The provinces of North Kivu, South Kivu and Ituri continue to be plagued by chaos and instability, caused by rebel groups that push forward and retreat again.543 The near constant conflict, and the continued insecurity that is caused by it, provide many opportunities for the military, militia and official government to commit crimes of sexual violence.544 As noted by Carlsen, rape is perceived as a particularly effective weapon to subdue, punish or extract revenge upon entire communities by the various armed groups involved in the conflict.545 However, despite the excessive brutality and the tremendous amount of victims, impunity regarding sexual violence generally persists within the country.546 Therefore, Eastern Congo is often referred to as ‘the rape capital of the world’.547 The widespread belief, among both soldiers and civilian men, that they could commit sexual violence crimes without consequence,548 has most likely been dented by Ntaganda’s conviction for sexual violence crimes.549 The ICC therewith proved to the Congolese that even someone who once enjoyed a powerful position cannot escape justice forever.550 Moreover, the Ntaganda case illustrates that the international community is against sexual violence and that an ongoing armed conflict will no longer be tolerated as a viable excuse for

538 Rosemary Grey, Sexual Violence against Child Soldiers: the Limits and Potential of International Criminal Law, International Feminist Journal of Politics, (2014). p.601 539 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda (Judgment), (8 July 2019), ICC- 01/04-02/06. §934 540 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda (Judgment), (8 July 2019), ICC- 01/04-02/06. §934 541 ICC, Trial Chamber VI, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda (Judgment), (8 July 2019), ICC- 01/04-02/06. §934 542 ICC, Trial Chamber VI, (7 November 2019), Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda, ICC-01/04- 02/06, p.117 543 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.663 544 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.663 545 Erika Carlsen, Ra/pe and War in the Democratic Republic of the Congo, Peace Review, (12 November 2009). p.479 546 Sara Meger, Rape of the Congo: Understanding Sexual Violence in the Conflict in the Democratic Republic of Congo, Journal of Contemporary African Studies, (20 May 2010). p.127 547 Noah K. Tenai, Impoverishing and dehumanising Violence against Women: An Opportunity for Service by Churches in Eastern Democratic Republic of Congo, Verbum et Ecclesia, (31 January 2017). p.2 548 Sara Meger, Rape of the Congo: Understanding Sexual Violence in the Conflict in the Democratic Republic of Congo, Journal of Contemporary African Studies, (20 May 2010). p.128 549 ICC, Trial Chamber VI, (7 November 2019), Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda, ICC-01/04- 02/06, p.117 550 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.688 53 sexual violence crimes.551 With the Ntaganda case, the ICC made known to the world that “every individual who incites or commits sexual violence during an (armed) conflict has to contemplate the risk of an ICC investigation, prosecution and sentence”.552 The Ntaganda judgment might thus very well be the first step towards ending conflict-related sexual violence and wartime rape.

551 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.688 552 Sarah T Deuitch, Putting the Spotlight on “The Terminator”: How the ICC Prosecution of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, William & Mary Journal of Women and the Law, (spring 2016). p.688 54

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