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The Day of International Criminal Justice: Prosecuting Gender-Based Persecution

By Maryna Tkachenko

Today is the Day of International Criminal Justice, marking the 21st anniversary of the 1998 Rome Statute, the treaty that established the International Criminal Court (ICC). In terms of international justice, the ICC is the only permanent institution that aims to hold perpetrators of genocide, crimes against humanity, war crimes, and crimes of aggression accountable. Created to investigate and prosecute mass atrocity crimes, the ICC offers us legal mechanisms to bolster the rule of law, ensure justice for victims, and establish a normative framework that can deter future human rights violations. Although the court continues to face setbacks in gaining the support of powerful states and strengthening its authority, this July the world witnessed a monumental moment in the ICC’s history of prosecuting sexual and gender-based crimes.

On 8 July 2019, the ICC case  Prosecutor v. Bosco Ntaganda culminated in a conviction that found Bosco Ntaganda, a Congolese warlord, guilty of 18 counts of war crimes and crimes against humanity, committed in the Democratic Republic of Congo between 2002 and 2003. After an almost five year-long trial, the ICC judges charged Ntaganda with murder, rape and sexual slavery of underage girls, enlisting child soldiers, and forcibly displacing the civilian population among other heinous crimes. Moreover, an astonishing 2,123 known survivors participated in the trial, emphasizing the need to include survivors in peacebuilding processes.

Because Ntaganda played a key role in planning and carrying out these campaigns, he even became known as “the Terminator.” If he does not appeal the final judgment in 30 days, Ntaganda will be sentenced to life in prison. There is no doubt that Ntaganda is culpable of unimaginable cruelty. However, what makes this case especially noteworthy is that this is the first successful attempt in any international criminal court to prosecute gender-based persecution. If the decision to charge Ntaganda for sexual violence is upheld, then it will also be the first final conviction for gender-based violence in the ICC’s history.

It’s important to note that—following its commitment to enforce the law against discrimination—the ICC has tried and failed to prosecute gender-based violence in the past. Back in 2016, former Congolese Vice President Jean-Pierre Bemba was found guilty for murder, rape, and pillage committed in the Central African Republic between 2002 and 2003. In 2018, the ICC Appeals Chamber overturned Bemba’s conviction for war crimes and crimes against humanity, reversing the ICC’s only conviction for sexual violence.

Despite possible changes in the case due to an appeal, the message of the Ntaganda case is clear: there is no room for impunity for gender-based violence under international law. This is an important step in showing that the international community will not tolerate systematic discrimination against women and girls. Developing robust human rights norms against gender-based persecution must be a priority.

Back in 2016, Fatou Bensouda, the ICC’s chief prosecutor, said in an interview,

I have sent very loud and clear messages that we will do whatever is in our power and in our mandate to address sexual violence in conflict. Because as you know, in these conflicts, unfortunately the most vulnerable groups are women and children. Whether they are taken as sexual slaves, or forced labour, or the children are recruited to fight wars that they shouldn’t be fighting–this happens.

Recognizing, punishing, and challenging systematic abuse of women, men, girls, and boys by reason of their gender is not an easy task. But prosecutors and lawyers such as Bensouda remind the international community that the fight for sustainable peace and security and justice for all is far from over.

PHOTO: United Nations Photo/CC BY-NC-ND 2.0