Commentaries

 resized270 gender violenceCommentaries provide expert analysis of cases and/or issues critical to understanding the development of international law with respect to sexual and gender-based violence. The commentaries may signal to users important institutional contexts in which the case was decided, the effect the case has (or has not had) on subsequent cases, or other noteworthy aspects of the case. They may also frame issues in the context of broader feminist discussions within the field of international criminal law more generally.



Here to Stay? Extended Liability for Joint Criminal Enterprise as a Tool for Prosecuting Mass SGBV Crimes print email

by Andrés Pérez

from ASIL Insights, Volume 19, Issue 13

Cross-Posted with Permission from ASIL

 

On September 29, 2014 it may have become considerably harder for civilian and military superiors to avoid criminal liability for mass sexual and gender-based violence (SGBV) after a landmark conviction by the United Nations International Criminal Tribunal for Rwanda (ICTR) was affirmed on appeal.1 In the trial judgement for The Prosecutor v. Édouard Karemera and Matthieu Ngirumpatse (Karemera et al.), Édouard Karemera and Matthieu Ngirumpatse, two of the highest-ranking politicians in Rwanda's 1994 interim government, were found liable for the mass rape, mutilation, and sexual assault of thousands of Tutsi women and girls during the Rwandan genocide.

 

Throughout their trial, Karemera and Ngirumpatse relied on a common and until now effective defense favored by high-level superiors who have been charged with mass SGBV crimes. The pair contended that they were not in charge of the Interahamwe—a Hutu militia that carried out some of the worst crimes during the genocide—or soldiers of the Rwandan Armed Forces (RAF). Moreover, they asserted that they did not ask the Interahamwe or RAF to commit rapes and sexual assaults, or have the means to prevent these heinous acts once the genocide "spiraled out of control."2

 

Karemera and Ngirumpatse were likely confident that they would avoid the prosecution's allegation that they were liable for genocide and rape as a crime against humanity. After all, there was no evidence that either had personally raped or sexually assaulted anyone during the genocide. Furthermore, there was no evidence that Karemera or Ngirumpatse had specifically ordered the Interahamwe, RAF, or other militiamen to rape or sexually assault Tutsi women and girls during the genocide. Finally, Ngirumpatse was away from Rwanda on official mission during part of the genocide.3

 

However, the prosecution relied on a complex and seldom pleaded doctrine of criminal responsibility known as extended liability for joint criminal enterprise (JCE), which is also referred to as "extended JCE" or "JCE III."4 Although the prosecution at the international criminal tribunals had previously relied on extended JCE in a handful of cases, it had never asserted that an accused was liable for rapes and sexual assaults under this mode of responsibility. Accordingly, the trial chamber judges in Karemera et al. were faced with a novel question of law.

 

Extended Liability for Joint Criminal Enterprise

 

Under this theory of criminal responsibility, an accused must first be found liable for participating in a "basic" JCE (in this case, the plan to destroy Rwanda's Tutsi population in whole or in part). Once the prosecution proves the accused's participation in the basic JCE, the accused may be found liable for a crime outside of its common purpose ("extended crime") that was committed by another JCE member (in this case, rape and sexual assault). A person is considered a JCE member if he contributes significantly to the common purpose of the JCE in any form, regardless of whether he is present at the time and place of the perpetration of the crime.5

 

For the accused to incur liability for an extended crime, it must be foreseeable that the extended crime was a possible consequence of the implementation of the basic JCE. In addition, the accused must have willingly taken the risk that the extended crime would be committed during the implementation of the basic JCE.6

 

Crucially for the prosecution, the doctrine of extended liability for JCE contains an extension that also permits liability for an extended crime committed by a non-member of the basic JCE. This was pivotal in the case against Karemera and Ngirumpatse because there was no evidence that other members of the basic JCE had personally committed any of the rapes and sexual assaults.

 

In order for an accused to incur liability for an extended crime committed by a non-member of the JCE, the non-member must have the requisite intent to participate in, and significantly contribute to, the JCE. Furthermore, in the circumstances of the case at hand, it must have been: 1) foreseeable that the non-member would commit the extended crime in the execution of the common purpose of the JCE; and 2) the accused must have been aware that the extended crime was a possible consequence of the implementation of the common purpose of the JCE and he must have willingly taken the risk that it would be committed.7 An accused demonstrates a willingness to take this risk by continuing to participate in the JCE despite the awareness that the extended crime is a possible consequence of the implementation of that enterprise. Moreover, the extended crime must be perpetrated in the execution of the common purpose.8

 

The Trial Chamber's Conclusion

 

After a detailed analysis of the evidence, the Trial Chamber found that Karemera and Ngirumpatse had participated in a very broad basic JCE to destroy the Tutsi population of Rwanda. Once it made this threshold finding, the Trial Chamber further concluded that the Interahamwe and RAF soldiers must have intended to participate in, and significantly contributed to, the plan to exterminate Rwanda's Tutsi population. Furthermore, the Trial Chamber determined that it must have been foreseeable to Karemera and Ngirumpatse that the Interahamwe and RAF soldiers would commit rapes and sexual assaults as they carried out the basic JCE to destroy the Tutsi population in Rwanda. (Indeed, Karemera himself testified at trial that it was ridiculous to think that soldiers do not rape during war.) Finally, the Trial Chamber found that Karemera and Ngirumpatse must have been aware that rapes and sexual assaults were a possible consequence of the plan to exterminate Tutsis in Rwanda and concluded that they must have willingly taken the risk that the Interahamwe and RAF soldiers would commit these crimes. According to the Trial Chamber, Karemera and Ngirumpatse demonstrated their willingness to take this risk because they continued to execute their plan to exterminate Rwanda's Tutsis despite their awareness that widespread rapes and sexual assaults were being committed throughout the country.9

 

In the course of its analysis, the Trial Chamber set forth the following landmark conclusion, which may soon form part of the wider body of international law:

 

The Chamber finds that during a campaign to destroy, in whole or in part, a national, ethnic, racial, or religious group, a natural and foreseeable consequence of that campaign will be that soldiers and militias who participate in the destruction will resort to rapes and sexual assaults unless restricted by their superiors.10

 

This conclusion clearly states that rapes and sexual assaults are a naturally foreseeable consequence of any genocidal campaign. It also unequivocally asserts that superiors are criminally liable for these rapes and sexual assaults if they do not restrict them. In this regard, the Karemera et al. trial judgment represents a quantum leap forward in addressing responsibility for mass SGBV crimes under international criminal law.

 

Criticisms of Extended Liability for JCE

 

Extended liability for JCE is not immune to criticism, however, and skeptics tend to focus their arguments on two grounds. First, they contend that this doctrine violates the principle of culpability because it holds an accused responsible for a crime even though he did not commit its actus reus or possess its specific mens rea. They also assert that extended liability for JCE is invalid because it did not arise from customary international law. In support of this latter claim, critics often fixate on the fact that extended liability for JCE arose for the first time in the International Criminal Tribunal for the Former Yugoslavia (ICTY) appeals judgment in Prosecutor v. Duško Tadić (Tadić),11 rather than from World War II era cases and national jurisdictions.12

 

With regard to the first criticism, it is undisputed that extended liability for JCE holds an accused responsible for a crime even though he did not commit the actus reus or necessarily possess the specific mens rea applicable to that crime. However, this is not a novel practice in customary international law. The doctrine of command responsibility, for example, is a longstanding principle of customary international law that assigns criminal responsibility to civilian or military superiors for war crimes committed by their subordinates, based on the superior's failure to take measures to prevent or punish the commission of such crimes. An accused does not have to commit the actus reus or possess the specific mens rea for a crime to be found liable under the theory of command responsibility.13 Consequently, it does not appear that extended liability for JCE categorically violates the principle of culpability merely because the accused does not have to commit the actus reus or possess the mens rea for a crime.

 

Although it is widely accepted that extended liability for JCE arose from the ICTY Trial Chamber's judgment in Tadić, rather than from World War II cases and national jurisdictions, this does not render it invalid. While the decisions of the Nuremberg and Tokyo Tribunals certainly laid the foundation for international criminal law, it would be unreasonable to reject other sources as illegitimate. After all, international criminal law is still a nascent field and evolving field.

 

Customary international law, which results from a general and consistent practice of states, is certainly one of the primary sources of international law. However, Article 38(d) of the Statute of the International Court of Justice also sets forth "judicial decisions and the teachings of the most highly qualified publicists of the various nations" as subsidiary means for the determination of rules of international law.14 Accordingly, it can be reasonably argued that the caselaw of the international criminal tribunals (ICTR and ICTY) can inform the legitimate evolution of rules of international law, including modes of liability. Indeed, ICTR and ICTY judgments are drafted by highly qualified judges, academics, and legal professionals from various nations. Therefore, it does not appear that extended liability for JCE is an invalid legal doctrine simply because it did not arise from the practice of national jurisdictions (customary international law).

 

Conclusion

 

Thus, the Karemera et al. judgment is a legitimate source for informing the practice of other international or domestic tribunals charged with assessing liability for mass SGBV crimes. In this regard, victims, advocates, prosecutors, and judges now have a powerful tool at their disposal with which to bring persons responsible for mass SGBV crimes to justice.15

 

About the Author: Andrés Pérez is based in Nairobi, Kenya where he works as a Senior Analyst for Sahan Foundation, a private think tank that focuses on counter-terrorism, security, and governance in Somalia.

[1] Édouard Karemera and Matthieu Ngirumpatse v. The Prosecutor, Case No. ICTR-98-44-A, Judgement (AC), ¶¶ 613–36 (Sept. 29, 2014).

[2] Prosecutor v. Édouard Karemera and Matthieu Ngirumpatse, Case No. ICTR-98-44-T, Judgement (TC), ¶¶1470, 1471 (February 2, 2012).

[3] Id. ¶¶ 1481, 1485.

[4] Id. ¶ 1465.

[5] Id. ¶¶ 1436, 1438.

[6] Id. ¶¶ 1462, 1463.

[7] Id. ¶ 1464.

[8] Id. ¶¶ 1462–63.

[9] Id. ¶¶ 1473–89

[10] Id. ¶ 1476.

[11] Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Judgement (AC), ¶¶ 195–229 (July 15, 1999).

[12] Kevin John Heller, The ECCC Issues a Landmark Decision on JCE III, Opinio Juris (May 23, 2010, 3:33 AM), http://opiniojuris.org/2010/05/23/the-eccc-issues-a-landmark-decision-on-jce-iii/.

[13] Rule 153, Command Responsibility for Failure to Prevent, Repress or Report War Crimes, International Committee of the Red Cross, https://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter43_rule153 (last visited May 26, 2015).

[14] Statute of the International Court of Justice, art. 38(d), available at http://www.icj-cij.org/documents/?p1=4&p2=2.

[15] Although this article focused on the relationship between extended liability for JCE and SGBV in the context of the Karemera et al. judgment, the author would like to point out that extended liability for JCE is a mode of direct criminal responsibility that can be applied to any crime. Accordingly, extended liability for JCE, as applied in the Karemera et al. judgment, may also serve as a powerful tool for bringing persons responsible for mass crimes other than SGBV to justice.

 
Sex and International Tribunals: The Erasure of Gender from the War Narrative print email

The following is an excerpt from the above-titled book by Cheseche Salome Mibenge, who visited the Washington College of Law on November 11th at an event co-sponsored by the War Crimes Research Office, The American Red Cross and The Women in International Law Interest Group of the American Society of International Law. Ms. Mibenge shared reflections on the process of writing this book as well as insights from her research into how international tribunals approach issues of gender and personal narratives of her visits to and work with victims of rape and sexual violence. A webcast of the event is available here.

 

All Women Are Slaves
Insiders and Outsiders to Gender and Violence

 

In February 2007, I conducted an interview with Lars Sven, a development worker in Sierra Leone. In the course of the interview, he explained that he was not at all surprised by the cruelty women and girls suffered in war because Sierra Leonean women were no more than slaves in peacetime too. According to Lars, "It's the same in war and peace; these little girls are sold into marriage by their parents; they are slaves in marriage. They are no more than slaves to their husbands." In January 2009, I shared Lars's observation with Papa, a Sierra Leonean colleague in the United States. Papa responded that actually he was not at all surprised by Lars's comments because "that's what white people think about us [Africans]." I countered: "I don't know if that's fair. This man has lived and worked in Sierra Leone for many years. His wife is Sierra Leonean. He loves the country." Papa replied, "Those are the worst kind. They tell lies about our culture and tradition, and we applaud them. He doesn't know a thing about Sierra Leone or Sierra Leonean women or the way we marry. And neither does his wife."

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Opportunities and Challenges: Preparing for Accountability in Syria print email

by Blake Peterson
The following is based on remarks delivered at an event at American University entitled "Sexual and Gender-Based Violence Post Arab Spring: Syria's Challenges to Protection and Accountability."

 

Over the past two decades, the work of international tribunals has made strides in bringing conflict-related sexual violence crimes out of the shadows and into the sphere of justice. Given the nature and sensitivity of such crimes, however, it remains difficult to ensure that these violations receive sustained attention to ensure perpetrators are held to account. In Syria, innovations in technology and evidence gathering, from citizen journalism to online tools, have democratized the environment for reporting on all forms of abuses and violations but they also pose new dilemmas for ensuring that perpetrators of the world's most heinous crimes face justice.

 

Given Syrians' remarkable proclivity for innovation throughout their revolution, it is no surprise that technological creativity is an ascendant feature of their journalism and atrocity documentation efforts. As a result, the technology revolution that spurred Syria's emergence as a unique information-rich environment has yielded thousands of gigabytes of documented violence and destruction. Indeed, the Syrian crisis may be the best-documented contemporary conflict. But does the staggering volume of digital documentation offer any evidentiary value?

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Investigation and Prosecution of Sexual and Gender-Based Violence by the International Criminal Court: Mandate, Good Policy or Both? print email

susana photo2The following remarks were presented by Susana SáCouto, Director of the War Crimes Research Office, on February 1, 2012, at a conference hosted by the the War Crimes Research Office and the Women and International Law Program at American University entitled "Addressing Sexual and Gender-Based Violence in Conflict and Post-Conflict Settings: National and International Strategies."

 

 

 

I. Introduction

The International Criminal Court (ICC) was established to end impunity for serious international crimes around the world.[1] Yet the Court’s broad mandate, jurisdiction over an increasing number of territories – there are now 120 States Parties to the Rome Statute that established the Court[2] – and limited resources[3] means that the Court must be selective in the situations it chooses to investigate and the cases it chooses to prosecute. Since the Rome Statute came into force more than a decade ago, the Court has formally initiated investigations in seven different situations,[4] commenced fourteen cases against twenty-five accused and confirmed charges in six cases against ten accused.[5] Gender-based crimes have been investigated in six of the seven situations now before the Court, namely: Uganda, the Democratic Republic of Congo (DRC), the Central African Republic (CAR), Darfur, Kenya and the Ivory Coast.[6] In addition, gender-based charges have been brought in eight of the fourteen cases currently before the Court.[7] In light of the historic failure to prosecute acts of sexual and gender-based violence committed in the context of conflict, mass violence or repression until relatively recently,[8] these statistics appear to indicate significant progress in the effort to seek accountability for such crimes.

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