Linking high level accused to CRSV

Another challenge in the prosecution of sexual violence before international criminal tribunals relates to the prosecution of CRSV in highly complex cases involving high-level officials that require linking sexual violence to a campaign of other violent crimes. It is important to be alert to patterns of sexual violence in the broader context of the conflict and understanding the indicators of sexual violence that make its occurrence foreseeable to high-level officials. For example, in the ICTY, the bulk of sexual violence cases included direct perpetrators of sexual violence crimes or others close to the scene of the crime. Prosecuting sexual violence in high-level, complex cases in which the perpetrators are more remote from the crime scene, however, could be done on the basis of command/superior responsibility and joint criminal enterprise theories. Although convictions based on these liability modes are necessarily complicated, prosecutions are bound to fail in cases of sexual violence crimes where prosecutors and investigators mischaracterize sexual violence as non-violent crimes that are incidental to the conflict.

The challenge in establishing liability under command/superior responsibility for sexual violence cases is proving that an accused person at least had reason to know of the risk that his subordinates would commit specifically sexual violence crimes, as opposed to other types of mistreatment. Although establishing a generalized level or risk of the prevalence of sexual violence in conflict is unlikely to be sufficient for establishing liability under command/superior responsibility, many of the facts in international prosecutions disclose more concrete indicators of the risk of sexual violence crimes, including the detention of women in camps where subordinates have uncontrolled access to them or knowledge that sexual violence recently had been prevalent in a particular conflict zone.

Furthermore, sexual violence prosecutions on the basis of Joint Criminal Enterprise (JCE) categories I, II, and III can be improved. Although proving that a crime was a natural and foreseeable consequence of a joint criminal enterprise (category III) is generally considered easier than proving that a crime formed part of the common criminal purpose to which all JCE members subscribed (categories I and II), the ICTY has recognized that sexual violence can constitute part of a common criminal purpose, either at the outset of the joint criminal enterprise or over time. Yet there are few ICTY cases in which this has occurred. In the case of sexual violence, according to Jarvis and Salgado (2013): “There is a particular risk of failing to appreciate how [sexual violence crimes] fit within an over-arching campaign of crimes due to the historical assumptions outlined above [referring to seeing sexual violence as personal in nature and separate from the main activity of conflict]. Investigators and prosecutors will likely have to dedicate extra attention to locate relevant witnesses and ask the right questions to uncover the extent to which sexual violence crimes fall within the broader pattern of crimes attributable to JCE members.” In the ICTR, prosecutions based on command/superior responsibility and joint criminal enterprise theory for sexual violence crimes have been very difficult and rare but in the ICTR’s final prosecutions, prosecutors have been putting more emphasis on putting rapes within the context of the genocide to help the judges accept that the rapes were within the sphere of the genocidal campaign, and not outside.

At the ICC, linking the accused to CRSV still seems to be one of the hardest challenges facing international criminal justice. Although in the cases of Katanga and Bemba the Trial Chambers determined CRSV had been committed, it ultimately held that there was insufficient evidence to link the crimes to the accused under the requisite mode of liability.

For example, the Bemba Trial Chamber judgment of 2016 was very significant: it assigned criminal responsibility to Jean-Pierre Bemba, a Congolese senior military official physically removed from the crime scene in the Central African Republic (CAR), including for rape as a war crime and crime against humanity. While Bemba did not commit these crimes himself, Bemba stood trial because “he knew” that his troops were committing these crimes, and “did not take all necessary and reasonable measures within his power to prevent or repress their commission” (Article 28 Rome Statute). The Bemba case was the first conviction at the ICC under the doctrine of command responsibility and for CRSV, including for sexual violence committed against men (charged as rape). Bemba received a sentence of 18 years. The Chamber further held that although the charges of rape as a war crime and crime against humanity are based on the same underlying conduct, they are not “impermissibly cumulative” because war crimes and crimes against humanity “have materially distinct elements.”

However, in 2018, the Appeals Chamber, in a controversial 3-2 ruling, acquitted Bemba. One of the arguments was that Bemba had not failed to take all necessary and reasonable measures to prevent and punish crimes committed by the troops under his effective control.  While the Trial Chamber earlier found that, all things considered, the measures taken by Bemba had been “grossly inadequate”, the Majority of the Appeals Judges thus disagreed. This opens up the question as to what specific measures a commander must take to satisfy their legal obligation to prevent the commission of sexual violence and to punish those who have engaged in such criminality. Is the geographical distance of the commander from the site of the alleged offence (especially if perpetrated in a foreign country) relevant to assessing the reasonableness of the measure taken, as suggested by the Majority?

Note: The Rome Statute of the ICC has departed from the joint criminal enterprise theory of liability as previously used by the ICTY and ICTR, and instead established a form of joint liability called “co-perpetration” under Article 25(3)(a). In addition, it establishes a residual form of common purpose liability under Article 25(3)(d). The precise extent to which Article 25(3)(d) overlaps with the law on joint criminal enterprise is debatable.