Prosecuting Rape in International Criminal Law: Challenges and Possibilities

Katanga case: Hearing for the review concerning reduction of sentence

Eithne Dowds (edowds03@qub.ac.uk)

Introduction

International criminal law has made substantial progress with regards to the recognition and prosecution of rape as an international crime.  The relative silence of the Nuremberg and Tokyo tribunals in relation to the crime of rape reflected an impoverished understanding of the crime as an inevitable by-product of war and mass violence. In more recent times, however, internationalised criminal tribunals have given the crime of rape legislative footing. The inclusion of rape in the statutes of the ad hoc tribunals of Yugoslavia and Rwanda in the early 1990’s gradually helped to shape new understandings of rape and sexual violence culminating in statute of the permanent International Criminal Court (ICC), which explicitly recognises rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity as war crimes and crimes against humanity.  However, the inclusion of the crime of rape in the statutes of international criminal courts is only the entry point; the skeletal provisions provided in the statues of international criminal tribunals must be fleshed out – in particular, the specific crimes must be defined.

The focus of this blog is on the evolution of the definition of rape in international criminal law.  The first definition was put forward in 1998 in the case of Akayesu before the International Criminal Tribunal for Rwanda (ICTR), followed by another two definitions developed before the International Criminal Tribunal for the former Yugoslavia (ICTY) in the 1998 case of Furundzija and the 2001 case of Kunarac.  A key issue of contention arising from these definitions is whether the non-consent of the victim should be an element of the crime of rape at the international level or whether the element of coercion is preferable.

The definitions developed at the ad hoc tribunals have been inconsistently applied in a number of cases before the tribunals themselves, and in other internationalised tribunals, demonstrating that there is no single, agreed-upon set of elements for the crime of rape under international criminal law.  The practice of the permanent ICC is significant in this regard, as in all of the other courts the crime of rape has been defined through case law whereas the definition used by the ICC was formulated by a Preparatory Commission in 2000 which drew up a text on the Element of Crimes for the Court.  The definition provided in the Elements of Crimes, however, lay dormant for over a decade and did not enter the formal jurisprudence of the ICC until the 2014 Katanga case.  The remainder of this blog will set international crimes in context and explain the importance of clarifying the definition of rape in international criminal law.

Breakdown of International Crimes

It is important to differentiate between international crimes and domestic crimes.  International criminal law has jurisdiction over war crimes, crimes against humanity and genocide.  International crimes have three core elements: the specific element, the common element and the linkage element.  The specific element refers to the underlying crime, for example rape or murder, the common element refers to the context and the particularities of war crimes, crimes against humanity and genocide, and the linkage element refers to the mode of liability that links the commission of each crime to a particular accused person or persons.  It may be helpful to visualise these elements as a three drawer filing cabinet; each drawer must be filled in order to bring a case against an accused.  A careful distinction must be made between the criminality of the underlying crime (the specific element), on the one hand, and the context (common elements) in which it is embedded, on the other hand.  It is this distinction that converts a domestic crime into a crime under international criminal law. Once these two elements are established, the final drawer must be filled, that is the linkage element to establish individual responsibility.  With regards to the crime of rape each element will be broken down below.

Specific Element

According to the Elements of Crimes for the ICC the Specific Element of the crime of rape is defined as:

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, and

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

Rule 70 of the Rules of Procedure and Evidence for the ICC also provide that ‘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;…Consent cannot be inferred by reason of the silence of, or lack of resistance by, a victim to the alleged sexual violence’ and Rule 72 provides that if evidence of consent is to be raised there will be an in camera hearing to access admissibility.

Common Elements

According to the Elements of Crimes for the ICC the Common Elements of War Crimes are that:

The conduct took place in the context of and was associated with an international armed conflict.

The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

According to the Elements of Crimes for the ICC the Common Elements of Crimes against Humanity are that:

The conduct was committed as part of a widespread or systematic attack directed against a civilian population.

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.

According to the Elements of Crimes for the ICC the Common Elements of Genocide are that the act in question was directed against individuals who:

Belonged to a particular national, ethnical, racial or religious group.

The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.

The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.

Linkage Elements

The statute of the ICC provides two broad categories of responsibility: individual responsibility (article 25) and command responsibility (article 28).

Individual responsibility will be triggered where the accused committed (directly, indirectly, or as a co-perpetrator), ordered, solicited, induced, aided and abetted, or otherwise contributed to the commission (or attempted commission) of the crime by a group acting with a common purpose.

Command responsibility will be triggered where a military commander had effective control over subordinates and failed to exercise that control properly, whether he knew or should have known the subordinates were committing crimes or where he failed to take reasonable measures to prevent or punish or submit to competent authorities to investigate crimes.  In situations of a superior-subordinate relationship that are not covered by the military commander provision a superior will be responsible for crimes committed where he knew or consciously disregarded info which clearly indicated subordinates were committing crimes, the crimes were activities within the effective responsibility and control of the superior, he failed to take all necessary and reasonable measures to prevent or submit to authorities for investigation.

The specific element, common element and linkage element must all be established in order to bring a case of rape as an international crime.

The Significance of the Katanga Judgment

Katanga was the first case containing charges of sexual and gender based crimes to reach trial before the ICC.  This case represents the current challenges and possibilities of prosecuting rape international criminal law. In 2003 the militia to which Katanga was commander carried out an attack on a village in the Democratic Republic of the Congo.  Katanga was charged with acting as an accessory to crimes carried out by the militia which included murder, attacking a civilian population, destruction of property, pillaging, rape, sexual slavery and using child soldiers.  Katanga was found guilty of the first four charges but acquitted of the last three, which included rape.  While the Court believed that rapes had been committed during the attack (the specific element) and that they amounted to crimes against humanity and war crimes (common element) the Court found that the evidence of individual liability (linkage element) was insufficient. Nevertheless this judgment remains important to the ongoing development of the law in this area, specifically with regards to the definition of rape.

As mentioned in the introduction the Elements of Crimes were developed in 2000 and the international community patiently waited for confirmation and clarification from the ICC on the definition of rape.  The Katanga judgment provided the opportunity for the Court to develop a deeper and more accurate definition and to clarify the relationship between consent and coercion that had haunted the definitions developed in other international criminal courts.  So what did the Court have to say?

The Chamber notes that, save the very specific situation of a person whose “incapacity” was “tak[en] advantage of”, the Elements of Crimes do not refer to the victim’s lack of consent, and therefore this need not be proven. The Elements of Crimes clearly seek to punish any act of penetration where committed under threat of force or of 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 (paragraph 965, emphasis added)

This definition therefore omits the element of non-consent, instead focusing on the material circumstances in which the crime takes place and the actions of perpetrator.  However, the issue of consent is not completely irrelevant as the Rules of Procedure and Evidence only provide that consent may not be inferred in certain circumstances, rather than excluding its relevance completely.  Therefore it may still be raised as a defence.  While the removal of the element of non-consent from the definition is commendable, it has resulted in a pre-emptive strategy being used by the Prosecution whereby the Prosecution raises questions about consent so as to avoid the issue being raised by the Defence.

Such a practice is evident when reviewing the transcripts of cases before the ICC such as Bemba where a male victim of rape testified to armed soldiers entering his home and three of the soldiers raping him in front of his wives, children and neighbours. His wives were also raped, as were his daughters one of which was 11 at the time. The Prosecution asked the witness

‘Did you consent to this act?…Did your daughters consent to these rapes?’

Similarly, a female victim recalled the rape she suffered when she was aged 12 and the Prosecution proceeded to ask

‘And did you give them consent to sleep with you, or to rape you?’

Therefore, the Prosecution is addressing the issue of consent even though it is not a formal requirement of the definition. The Prosecution may be doing this strategically to avoid intrusive questioning by the Defence; however, the fact that consent is being explored in cases regarding the rape of children aged 11 and 12 would suggest that the definition of rape and the rules concerning consent at the ICC still need to be refined.

Conclusion

In conclusion, international crimes consist of three core elements: the specific element, the common element and the linkage element.  The definition of rape, which has been the focus of this blog, is situated within the specific element; it represents the underlying crime and sets out the particular elements that must be proven to establish that the crime of rape has been committed.   The definition has troubled international tribunals from the Ad Hoc Tribunals to the ICC.  While the Katanga case clarified the definition of rape omitting the element of non-consent it has nonetheless featured in the trials suggesting that there is still scope to formulate a more concrete definition of rape.  Such a definition would help to clarify the relationship between consent and coercion by distinguishing between situations where questions of consent can be entertained as a defence and situations where a conclusive presumption against consent would arise, therefore completely disallowing it as a defence. In the latter situation the Prosecution would not need to deploy a pre-emptive strategy as it would be made clear in the definition that consent is legally irrelevant.