Dear Readers,
The following commentary first ran in the first Special Issue of Legal Eye on the ICC, a regular eLetter produced by the Women’s Initiatives for Gender Justice, an international women’s human rights organization that advocates for gender justice through the International Criminal Court (ICC) and works with women most affected by the conflict situations under investigation by the ICC. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative. To read the full version of the Legal Eye eLetter, click here. To read the previous Special Issues, click here.
On March 7, 2014, Trial Chamber II issued the ICC’s third Trial Judgment in the case of The Prosecutor v. Germain Katanga, convicting Germain Katanga (Katanga), by majority,[i] as an accessory for the war crimes of directing an attack against a civilian population, pillaging, and destruction of property, as well as for murder as a war crime and a crime against humanity.[ii] Katanga was acquitted as an accessory to rape and sexual slavery, both as war crimes and crimes against humanity.[iii] He was also acquitted of the war crime of using child soldiers.[iv] Judge Christine Van den Wyngaert issued a dissenting opinion[v], and Judges Fatoumata Dembele Diarra and Bruno Cotte issued a separate, concurring opinion.[vi] On April 9, 2014, the Prosecution appealed Katanga’s acquittal for the sexual violence charges, indicating its intention to request the Appeals Chamber to reverse or amend the Trial Judgment and/or order a partial new trial before a different Chamber.[vii]
Katanga was tried jointly with Mathieu Ngudjolo Chui (Ngudjolo), constituting the Court’s second trial, as well as the second case, after the Lubanga case, arising from the DRC Situation.[viii] It was the first case in which crimes of sexual violence, including rape and sexual slavery, had been charged. During the trial, the case centered on Katanga and Ngudjolo’s alleged indirect co-perpetration in orchestrating an attack on the village of Bogoro in the region of Ituri on February 24, 2003, as commanders of the Ngiti combatants from Walendu-Bindi and the Lendu combatants from Bedu-Ezekere, respectively.[ix] On November 21, 2012, the majority of Trial Chamber II severed the case against Katanga and Ngudjolo and notified the parties of a potential recharacterisation of the mode of liability with which Katanga was charged.[x] On December 18, 2012, the Chamber acquitted Ngudjolo of all charges.[xi]
The Katanga Trial Judgment marks the first ICC judgment in which the Rome Statute’s provisions addressing sexual and gender-based crimes have been interpreted. Although acquitting Katanga of these crimes, the Chamber found that during the attack on Bogoro on February 24, 2003, Ngiti combatants from militia camps in Walendu-Bindi committed rape as war crimes and crimes against humanity, and that in the aftermath of the attack, these combatants, as well as others in the camps, committed sexual slavery as war crimes and crimes against humanity.[xii] The Chamber’s interpretation of the elements of these crimes, as well as its factual findings and legal conclusions in relation to each of these elements, are described in detail below.[xiii]
The Chamber’s interpretation of the elements of rape as a war crime and a crime against humanity
Citing the Elements of Crimes of the ICC[xiv], the Chamber noted that rape as a war crime under Article 8(2)(e)(vi) of the Statute, and as a crime against humanity under Article 7(1)(g) of the Statute, contain two common material elements, namely:
- 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.
- 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.[xv]
The Chamber found that the first element can be established even if the perpetrator does not personally undertake the penetration, including in instances in which ‘the perpetrator is himself penetrated’ or ‘brings about the penetration’.[xvi] It explained that the second element lists the circumstances that will render the invasion of the person’s body criminal and that such circumstances include taking advantage of the inability of the victim to consent due to the victim’s age. It noted that, with the exception of the specific situation in which the perpetrator takes advantage of the inability of a person to give genuine consent, the Elements of Crimes do not refer to the absence of consent, and found that this factor accordingly does not need to be demonstrated.[xvii] Instead, it found that it is sufficient to demonstrate one of the circumstances of a coercive nature listed in the second element, noting that this interpretation is confirmed by Rule 70 of the ICC Rules of Procedure and Evidence (Rules).[xviii]
The Chamber also noted that to establish rape as a crime against humanity under Article 7(1)(g) of the Statute, the conduct must have been part of a widespread or systematic attack against a civilian population,[xix] while to establish rape as a war crime under Article 8(2)(e)(vi) of the Statute, the conduct must have taken place in the context of and be associated with a non-international armed conflict.[xx]
Addressing the mental elements of the crimes, the Chamber noted that when the Elements of Crimes do not refer to specific mental elements, it must refer to the knowledge and intent requirements under Article 30 of the Statute. It thus concluded that for rape as both a war crime and a crime against humanity, it is necessary to demonstrate that the perpetrator ‘intentionally [took] possession of the body of the victim’ through deliberate action or failure to act: ‘(1) resulting in penetration; or (2) while he was aware that penetration would occur in the ordinary course of events. Furthermore, […] the perpetrator must have known that the act was committed by force, threat of force, coercion’ or ‘by taking advantage of the inability of the victim to give genuine consent’.[xxi]
Finally, the Chamber noted that in addition to the knowledge and intent requirements under Article 30 of the Statute, the Elements of Crimes require that to establish rape as a crime against humanity, the perpetrator must be aware that the conduct was part of or have intended it to be part of a widespread or systematic attack against a civilian population, while to establish rape as a war crime, the perpetrator must have known of the factual circumstances establishing the existence of an armed conflict.[xxii]
The Chamber’s interpretation of the elements of sexual slavery as a war crime and a crime against humanity
The Chamber noted that, as provided in the Elements of Crimes, to establish sexual slavery as a war crime under Article 8(2)(e)(vi) of the Statute and as a crime against humanity under Article 7(1)(g) of the Statute, two common material elements must be met, namely:
- The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.
- The perpetrator caused such person or persons to engage in one or more acts of a sexual nature.[xxiii]
Regarding the first element, the Chamber defined the ‘power attaching to the right of ownership’ as ‘the possibility to use, enjoy, and dispose of a person as one’s property, by placing the person in a situation of dependence that leads to a full deprivation of autonomy’. It emphasized that the powers of ownership specified in the first element do not constitute an exhaustive list.[xxiv] Citing the jurisprudence of the International Criminal Tribunal for the former Yugoslavia and the Special Court for Sierra Leone,[xxv] it found that demonstrating the power of ownership requires a case-by-case analysis, taking into consideration various factors. It further found that the power of ownership does not necessitate a commercial transaction but rather relates to the inability of a victim to change his or her condition.[xxvi] Additionally, it found that ‘deprivation of liberty’ can take many forms, and that in analyzing this factor, the victim’s subjective perception of his or her situation, including reasonable fears, may be taken into account.[xxvii]
The Chamber specified that the second element concerns the ability of the victim to decide matters relating to his or her sexual activities. In this regard, it found that sexual slavery covers situations in which women and girls are coerced to ‘share their lives’ with a person with whom they must perform acts of a sexual nature.[xxviii]
The Chamber also noted that to establish sexual slavery as a crime against humanity under Article 7(1)(g) of the Statute, the conduct must have been part of a widespread or systematic attack against a civilian population,[xxix] whereas to establish sexual slavery as a war crime under Article 8(2)(e)(vi) of the Statute, the conduct must have taken place in the context of and be associated with a non-international armed conflict.[xxx]
Addressing the mental elements of the crimes as required under Article 30 of the Statute, the Chamber found that the perpetrator must have been aware that he exercised, individually or collectively, one of the attributes of the right of ownership over a person and have intentionally coerced the person to perform acts of a sexual nature or have known that such a result would occur in the ordinary course of events.[xxxi] It noted that according to the Elements of Crimes, the commission of sexual slavery may involve more than one perpetrator as part of a common criminal purpose and clarified that in instances of collective conduct, Article 30 must be applied to each individual perpetrator.[xxxii]
Lastly, the Chamber noted that to establish sexual slavery as a crime against humanity, the perpetrator must be aware that the conduct was part of or have intended it to be part of a widespread or systematic attack against a civilian population, while to establish sexual slavery as a war crime, the perpetrator must have known of the factual circumstances establishing the existence of an armed conflict.[xxxiii]
Factual findings concerning rape and sexual slavery
In finding that the elements of rape and sexual slavery as war crimes and crimes against humanity had been established, the Chamber relied primarily on the testimony of Witnesses 132, 249 and 353, who were direct victims of these crimes. It noted that the testimony of these witnesses had been corroborated by other witnesses, but pointed out that, as specified under Rule 63(4) of the Rules, corroboration is not required to prove crimes of sexual violence.[xxxiv] The Chamber found these witnesses credible despite contradictions in their testimony, which it attributed to difficulties encountered in speaking about such private experiences and reluctance to divulge personal information.[xxxv] By contrast, as noted in her dissent, Judge Van den Wyngaert would have refrained from relying on the testimonies of these witnesses in light of the inconsistencies therein.[xxxvi]
Rape
Witness 132 testified that she was found by six armed combatants while hiding in the bush and that three of the combatants sexually assaulted her ‘through vaginal penetration’. The Chamber found that the Witness was ‘in a state of total submission’ during the assault, having feared that she would be killed if she did not obey. It determined that such sexual acts committed by assailants during an armed attack against civilians could only be coercive in nature.[xxxvii]
Witness 249 testified that during the attack on Bogoro, six armed combatants hunted her down, dragged her into the bush, took off her clothes, threatened to kill her, and ‘imposed vaginal penetration’. The same combatants forced her to a place where they detained her, beat her, and raped her again, as she begged them to kill her instead of subjecting her to such treatment. The Chamber noted that during these incidents, Witness 249 was extremely vulnerable and had ‘valid reasons to fear for her life’.[xxxviii]
Witness 353 testified that after witnessing combatants murder those with whom she had been hiding, the combatants forced her to follow them and transport their stolen goods. They physically assaulted her and then detained her in their camp in Walendu-Bindi. Two of the combatants forced her ‘to have sexual intercourse’ through ‘vaginal penetration’.[xxxix] The Chamber determined that she had been ‘afraid for her life and had no other option than to obey’.[xl]
The Chamber found that the perpetrators intentionally had sexual intercourse with Witnesses 132, 249 and 353, respectively, while fully aware of the coercive circumstances in which the victims found themselves, thereby committing the crime of rape.[xli] It also found that these rapes were associated with the conflict and that the perpetrators knew of the existence of the conflict.[xlii] It further found that the rapes formed part of a systematic attack targeting a civilian population, which was predominantly Hema, and that the perpetrators knew these crimes were part of the attack.[xliii] In light of the foregoing, it concluded that the evidence established beyond reasonable doubt that during the attack on 24 February 2003, Ngiti combatants from militia camps in Walendu-Bindi intentionally committed rape as a war crime under Article (8)(2)(e)(vi) and as a crime against humanity under Article (7)(1)(g) of the Statute.[xliv]
Sexual Slavery
In its analysis of the crime of sexual slavery, the Chamber emphasized that the use of the term ‘wife’ by the perpetrators had a particular meaning under the circumstances. Specifically, it found that when it was said that, in the period following the attack on Bogoro, a person had been ‘taken as a wife’ by a combatant or that a person had ‘become his wife’, it referred to a coercive environment and ‘almost certain performance of acts of a sexual nature’.[xlv] In this regard, the Chamber noted Witness 132’s testimony that ‘when someone takes you for his wife he can have sex with you at any time, as he wants’.[xlvi] It concluded that the fact that the combatants had referred to the civilian women captured in Bogoro and taken to the camps as their ‘wives’ demonstrated that they all intended to treat their victims as if they were their ‘possessions’ and to obtain from them ‘sexual favours’.[xlvii]
Witness 132 testified that after raping her, armed men took her to a military camp, where she was detained in a hole for a number of days and then forced by the camp commander to live behind his house. She stated that while in the camp, she was forced to perform domestic tasks, and she had wanted to flee but feared disobeying the commander’s orders. She also testified that she was coerced to marry and live with a combatant in the camp and to follow him when he was transferred to other camps.[xlviii] The Chamber found that during the attack on Bogoro and throughout her over one and a half years of captivity, Witness 132 was repeatedly raped by combatants, including by the man who ‘took her as his wife’.[xlix]
Witness 249 testified that after she was raped during the attack by six Ngiti combatants, she was taken to a militia camp where the perpetrators raped her again. The commander told her that since she refused to reveal the location of the Hema, she would either be killed or become the combatants’ wife. During her captivity, she was required to live with the combatants and perform domestic chores, to be ‘at the disposal’ of one combatant, and was repeatedly raped by several combatants. She remained in the camp for about one month until she managed to escape.[l]
Witness 353 testified that after she was forced from her hiding place, along with two other women, she was assigned to be the shared ‘wife’ of two combatants. She was beaten, taken captive, forced to follow combatants and carry their looted property, and taken to a militia camp in Walendu-Bindi.[li] She was confined in a house in the camp for about three months, where her only task was to have sexual relations with her ‘husbands’.[lii] The Chamber found that she was repeatedly raped during this time by both men. She was afraid to escape for fear that they would kill her but managed to do so after obtaining authorization from her ‘husband’ to leave temporarily.[liii]
The Chamber found that the combatants were aware that these women were being held in captivity and intentionally coerced them to perform acts of a sexual nature, thereby committing the crime of sexual slavery.[liv]
The Chamber found that other women had also been held in sexual slavery in the aftermath of the Bogoro attack. In this regard, it noted the testimony of Witness 132 that a young girl had been detained with her and repeatedly raped by the combatants. It also noted Witness 353’s testimony that during the attack, two other women were ‘given as wives’ to combatants. It cited Witness 128’s testimony that when he was detained during the attack, he witnessed a Ngiti combatant take a woman by force, later learning that she had been married to and had a child with this man. It further cited the testimony of Witness 233, who stated that he knew three women from Bogoro who were captured, taken to Ngiti occupied areas and ‘subjected to a similar fate’.[lv]
The Chamber found that the sexual slavery was associated with the conflict,[lvi] noting that the three witnesses were sexually enslaved inside the military camps and that their abduction was linked with the hostilities. It also found that the sexual slavery formed part of the systematic attack targeting the predominantly Hema civilian population[lvii] and that the perpetrators committed these crimes in full knowledge that they were part of it.[lviii] Based on this evidence, the Chamber concluded beyond reasonable doubt that combatants from Ngiti militia camps in Walendu-Bindi, as well as other persons in those camps, intentionally committed sexual slavery as war crimes under Article (8)(2)(e)(vi) of the Statute and crimes against humanity under Article (7)(1)(g) of the Statute in the aftermath of the Bogoro attack.[lix]
Read the Statement of the Women’s Initiatives for Gender Justice on the Katanga judgment
Read the trial judgment against Katanga (as of the publication of this eLetter, only the French version of the judgment was available)
For more background about the mode of liability charged against Katanga see the Women’s Initiatives Expert Paper on Modes of Liability
For more background about the case against Katanga see the Gender Report Cards: 2013, 2012, 2011, 2010, 2009, and 2008.
For summaries of witness testimony by victims/survivors of sexual violence given in the Katanga case, see the Gender Report Card 2010.
For a detailed description of the closing arguments in the case against Katanga and Ngudjolo see the Gender Report Card 2012
Read more about the trial judgment acquitting Mathieu Ngudjolo Chui in the Women’s Initiatives’ series of Special Issues of the Legal Eye on the ICC.
Read the statement by the Women’s Initiatives for Gender Justice on the opening of the trial against Katanga and Ngudjolo, 23 November 2009.
_________________________________
[i] Trial Chamber II was composed of Presiding Judge Bruno Cotte (France), Judge Fatoumata Dembele Diarra (Mali) and Judge Christine Van den Wyngaert (Belgium). Henceforth, the term ‘Chamber’ will be used to reflect the opinion of the majority.
[ii] ICC-01/04-01/07-3436, p 709-710.
[iii] ICC-01/04-01/07-3436, p 710.
[iv] ICC-01/04-01/07-3436, p 710.
[v] ICC-01/04-01/07-3436-AnxI.
[vi] ICC-01/04-01/07-3436-AnxII.
[vii] ICC-01/04-01/07-3462, paras 3-4.
[viii] The cases were joined on 10 March 2008. ICC-01/04-01/07-257.
[ix] The Prosecution had charged and the Pre-Trial Chamber had confirmed that at the time of the attack, Katanga and Ngudjolo were the alleged commanders of the Force de résistance patriotique en Ituri (FRPI) and the Front de nationalistes et intégrationnistes (FNI), respectively.
[x] ICC-01/04-01/07-3319. In this decision, the majority of Trial Chamber II (Judge Van den Wyngaert dissenting) notified the parties and participants, pursuant to Regulation 55 of the Regulations of the Court, of a potential recharacterisation of the facts underlying the form of criminal responsibility with which Katanga was charged, from indirect co-perpetration pursuant to Article 25(3)(a) of the Statute to accessory liability under Article 25(3)(d). This recharacterisation of the charges was the subject of extensive litigation. For more detailed information on the Regulation 55 proceedings, see Gender Report Card 2013, p 92-104. See also ‘Modes of Liability: A review of the International Criminal Court’s jurisprudence and practice’, Women’s Initiatives for Gender Justice, November 2013, p 116-130, available at <http://www.iccwomen.org/documents/Modes-of-Liability.pdf>.
[xi] ICC-01/04-02/12-3-tENG, p 197.
[xii] ICC-01/04-01/07-3436, paras 999, 1023, pursuant to Articles 8(2)(e)(vi) and 7(1)(g) of the Statute.
[xiii] Note that the Trial Chamber found that the armed conflict encompassing the attack on Bogoro was non-international in character and accordingly assessed the crimes of rape and sexual slavery as war crimes under Article 8(2)(e)(vi) of the Statute. ICC-01/04-01/07-3436, para 1229.
[xiv] Elements of Crimes of the International Criminal Court, ICC-ASP/1/3, p 108 (Elements of Crimes).
[xv] Elements of Crimes, Articles 7(1)(g)-1(1),(2) and 8(2)(e)(vi)-1(1),(2).
[xvi] ICC-01/04-01/07-3436, para 963.
[xvii] ICC-01/04-01/07-3436, paras 964-965.
[xviii] In this regard, the Chamber cited Rule 70(a) of the Rules, which provides: ‘In cases of sexual violence, […] consent cannot be inferred by reason of any words or conduct of a victim where force, threat of force, coercion or taking advantage of a coercive environment undermined the victim’s ability to give voluntary and genuine consent’. ICC-01/04-01/07-3436, para 966.
[xix] ICC-01/04-01/07-3436, para 967, citing Elements of Crimes, Article 7(1)(g)-1(3).
[xx] ICC-01/04-01/07-3436, para 968, citing Elements of Crimes, Article 8(2)(e)(vi)-1(3).
[xxi] ICC-01/04-01/07-3436, paras 969-970, citing Article 30(2) of the Statute.
[xxii] ICC-01/04-01/07-3436, paras 971-972, citing Elements of Crimes, Articles 7(1)(g)-1(4) and 8(2)(e)(vi)-1(4).
[xxiii] ICC-01/04-01/07-3436, para 974, citing Elements of Crimes, Articles 7(1)(g)-2(1),(2) and 8(2)(e)(vi)-2(1),(2).
[xxiv] ICC-01/04-01/07-3436, para 975.
[xxv] ICC-01/04-01/07-3436, para 976. Specifically, the Chamber cited IT-96-23-T and IT-96-23/1-T, Kunarac et al Trial Judgment, paras 542-543; Kunarac et al Appeal Judgment, paras 119, 121; SCSL-04-15-T, Sesay, Kallon and Gbao Trial Judgment, para 160; SCSL-03-01-T, Taylor Trial Judgment, para 420.
[xxvi] Such factors include: the victim’s detention or captivity and its duration; limitations on freedom of movement and any other measures taken to prevent or deter escape; use of threats, force or other forms of physical or mental coercion; forced labour; the victim’s position of vulnerability; and the socio-economic conditions under which such powers are exercised. ICC-01/04-01/07-3436, para 976.
[xxvii] ICC-01/04-01/07-3436, para 977.
[xxviii] ICC-01/04-01/07-3436, para 978.
[xxix] ICC-01/04-01/07-3436, para 979, citing Elements of Crimes, Article 7(1)(g)-2(3).
[xxx] ICC-01/04-01/07-3436, para 980, citing Elements of Crimes, Article 8(2)(e)(vi)-2(3).
[xxxi] ICC-01/04-01/07-3436, para 981, citing Article 30(2)(a),(b) and (3) of the Statute.
[xxxii] ICC-01/04-01/07-3436, para 982.
[xxxiii] ICC-01/04-01/07-3436, paras 983-984, citing Elements of Crimes, Articles 7(1)(g)-2(4) and 8(2)(e)(vi)-2(4).
[xxxiv] ICC-01/04-01/07-3436, para 986.
[xxxv] ICC-01/04-01/07-3436, paras 988, 994.
[xxxvi] ICC-01/04-01/07-3436-AnxI, paras 152-154 and footnotes 189-192.
[xxxvii] ICC-01/04-01/07-3436, paras 989-990.
[xxxviii] ICC-01/04-01/07-3436, para 993.
[xxxix] ICC-01/04-01/07-3436, para 997, citingICC-01/04-01/07-T-213-Red, p 50, 52.
[xl] ICC-01/04-01/07-3436, para 997.
[xli] ICC-01/04-01/07-3436, paras 992, 995-996, 998.
[xlii] ICC-01/04-01/07-3436, para 1233.
[xliii] ICC-01/04-01/07-3436, paras 1166-1167.
[xliv] ICC-01/04-01/07-3436, para 999.
[xlv] ICC-01/04-01/07-3436, para 1000.
[xlvi] ICC-01/04-01/07-3436, para 1000.
[xlvii] ICC-01/04-01/07-3436, para 1001.
[xlviii] ICC-01/04-01/07-3436, paras 1002, 1004.
[xlix] ICC-01/04-01/07-3436, paras 1006-1007.
[l] ICC-01/04-01/07-3436, para 1009.
[li] ICC-01/04-01/07-3436, para 1014.
[lii] ICC-01/04-01/07-3436, paras 1015-1016.
[liii] ICC-01/04-01/07-3436, para 1015.
[liv] ICC-01/04-01/07-3436, paras 1008, 1013, 1018-1019.
[lv] ICC-01/04-01/07-3436, para 1021.
[lvi] ICC-01/04-01/07-3436, para 1234.
[lvii] ICC-01/04-01/07-3436, para 1167.
[lviii] ICC-01/04-01/07-3436, para 1166.
[lix] ICC-01/04-01/07-3436, para 1023.