By Kelly-Jo Bluen
ON PAST MONDAY, for the first time in the history of the International Criminal Court (ICC), it convicted a defendant for sexual and gender-based crimes. The defendant was Jean-Pierre Bemba, former vice-president of the Democratic Republic of Congo (DRC), who was charged for war crimes and crimes against humanity for his involvement in the Central African Republic (CAR) conflict.
While most of the testimonies were from women, this was also the first time in the history of international criminal law that sexual violence against men has been defined in law as the crime of rape. Previously, the rape of men has been addressed internationally as a crime of torture, outrage upon personal dignity or cruel treatment. This conviction represents a critical juncture in a long and reprehensible history of regarding sexual violence as an unfortunate byproduct of war.
In the Nuremberg Trials, perpetrators were not prosecuted despite evidence of sexual violence. The International Criminal Tribunals for Yugoslavia and Rwanda (ICTR) in many ways concretised legal thinking surrounding the prosecution of wartime sexual violence. In the landmark Akayesu case, the ICTR for the first time recognised rape as an instrument of genocide. It is against this backdrop that the ICC has included sexual crimes in various charges.
While it has garnered mixed responses in the DRC and CAR, the conviction is substantial in terms of its contribution to the prosecution of wartime sexual violence and has been lauded as such by the ICC and several governments and human rights organisations.
At the same time, it is important it is considered as part of a broader spectrum of ideas and approaches to gender-based violence in conflict, and that the victory is not instrumentalised to entrench narrow definitions of wartime rape.
The ICC can only prosecute rape as a war crime, crime against humanity or act of genocide. This addresses a particular form of wartime rape largely committed by combatants under a command structure. In most war contexts, as in peace contexts, in the context of global patriarchy, a large proportion of incidents of rape happen in intimate partnerships.
In focusing on the horrors of rape as an international atrocity crime, it is important that the narration and policy structures surrounding rape do not exclude this.
It is essential that the focus on women in conflict, embodied by various international frameworks including the Women, Peace and Security Agenda, does not come to define what many feminist activists and writers refer to as “perfect victims”, thereby excluding those whose experience does not subscribe to a particular notion of what rape looks like.
Rape is a horrific act of violence; it does not require concomitant injury for it to be considered a crime. Nor is it a crime simply within the remit of combatants, or “barbaric others” so frequently construed. It is committed by ordinary men, all the time, in peace and in war.
The ICC is a court and it cannot prosecute outside its mandate. It is also, in many ways, a juridical product of, and reproducer of, a particular set of ideas surrounding rape in conflict. Thus, while lauding this development, it is important to guard against the narratives employed becoming a singular and unrepresentative description of rape in conflict, specifically when they encompass paternalistic notions and do not provide for justice for many of the survivors of sexual violence.
As in all contexts, the horrors of gender-based violence come in many forms, all of which are egregious and unacceptable.
More thinking and more questions need to go into conversations to address the horrors of wartime sexual violence.
• Bluen is project leader for international justice at the Institute for Justice and Reconciliation