The Pre-Trial Chamber’s Original Judgment

In the original judgment, the Pre-Trial Chamber declined to include forced nudity in the Warrant of Arrest against Mr Bemba.Footnote ⁴ The Chamber decided that the alleged acts of members of the MLC in ordering civilians (including cisgenderFootnote ⁵ men) to remove their clothes in public could not be considered ‘other forms of sexual violence’ as charged by the Prosecutor.Footnote ⁶ In the Chamber’s view, forced nudity was not conduct of ‘a gravity comparable to the other offences’ in Article 7(1)(g) of the Statute, such as rape, sexual slavery, enforced prostitution, forced pregnancy, or enforced sterilisation, or, regarding Article 8(2)(e)(vi), of comparable gravity to a serious violation of Common Article 3 of the Geneva Conventions.Footnote ⁷ The Chamber did not give any further reasoning for the exclusion.

The Reimagined Decision and Critical Reflection

The essential legal issue for the rewritten judgment was whether there were reasonable grounds to believe the specific acts of forced nudity by MLC members were of comparable gravity to other sexual offences found in Article 7(1)(g) or Article 8(2)(e)(vi).Footnote ⁸ Judge David Eichert concludes that, in this case, there were such reasonable grounds.

Although international tribunals have established that forced nudity can be considered a sexual crime, this is not always the case. As noted by the rewritten judgment, whether or not forced nudity is a sexual crime depends on the context of the acts themselves.Footnote ⁹ However, it is the particular context where international tribunals and the ICC have declined to acknowledge forced nudity and other acts similarly not specified in Articles 7(1)(g) and 8(2)(e)(vi) as ‘sexual crimes’ that has been considered problematic by scholars, including feminist scholars,Footnote ¹⁰ and specifically in cases where victims have been cisgender men.

Historically, conflict-related sexual violence against anyone was largely ignored by national and international regimes alike. Through decades of feminist scholarship and advocacy there are now well-established international instruments and norms that recognise the victimisation of cisgender women and girls by conflict-related sexual violence, including the Rome Statute itself. However, it was not until relatively recently that cisgender men and boys were recognised as a unique category of victims of such violence. The international criminal tribunals for Rwanda and for the former Yugoslavia tried a number of cases that defined rape and sexual violence in a way that included violence against cisgender men and boys.Footnote ¹¹ The Rome Statute also incorporates gender-neutral definitions of sexual violence. Nevertheless, as Sandesh Sivakumaran has argued, despite the recent recognition, problems remain in the implementation of the law.Footnote ¹² For example, where victimisation of cisgender men and boys was not prosecuted as ‘sexual violence’ but as torture instead,Footnote ¹³ or where individual acts of violence against men were acknowledged but not prosecuted at all (as in this case).Footnote ¹⁴ Such approaches reinforce the idea that the violence that happens to men during conflict is not ‘sexual’ or that it is separate from, and in some cases perceived as ‘less serious’ than, the violence perpetrated against women.Footnote ¹⁵ Failing to recognise or prosecute such violence also ignores and invalidates the unique harm that victims suffer.

The catch-all words in Articles 7(1)(g) and 8(2)(e)(vi), ‘any other form of sexual violence’, potentially capture a range of violent acts perpetrated against cisgender men and boys; however, as illustrated by Valerie Oosterveld’s research, the ICC Prosecutor is rarely successful in arguing for the inclusion of such acts.Footnote ¹⁶ Judge Eichert’s rewritten judgment seizes an opportunity for the Chamber to fill the legal gap and recognise that forced nudity may, in some circumstances, be used to weaponise cultural ideas and beliefs about ‘gender, sexuality, religion, chastity, respect, social position, or dignity’.Footnote ¹⁷ Starting from an understanding of the crime of forced nudity that captures its potential to weaponise norms of gender, Judge Eichert creates space for the recognition of cisgender men, and, as further explored below, gender-diverse people, including trans people, as victims of a ‘sexual’ crime.

Judge Eichert outlines the unique ‘sexual’ harm of forced nudity that is tied to cultural and social context. All societies have socially constructed ideas about gender and sexuality, and a perpetrator can use forced nudity to weaponise these ideas against any gender. He describes such harm as mental anguish, being traumatising and humiliating.Footnote ¹⁸ By taking into consideration the social context, Judge Eichert acknowledges the potential psychological harm that can be inflicted on victims of forced nudity. His judgment also makes clear that perpetrators of any gender can weaponise such norms against a person of any other gender.Footnote ¹⁹ Forced nudity is therefore committed within the context of the perpetrators and the victim’s gender in light of the socially constructed norms of gender and sexuality. Thus, in certain circumstances the act of forced nudity can be just as dehumanising and harmful as the physical manifestations of sexual violence specified in Articles 7(1)(g) and 8(2)(e)(vi).

Unlike in the Pre-Trial Chamber’s original judgment, where the voices of victims were absent, in assessing the gravity of the particular alleged acts presented by the ICC Prosecutor, the reimagined judgment centres the victims’ experience. Judge Eichert stresses the importance of listening to victims when considering the social and cultural context that informs the gender norms being weaponised as ‘sexual’ harm. In doing so, he decides that there are reasonable grounds to believe the acts of forced nudity are of sufficient gravity to be included in the arrest warrant as ‘other forms of sexual violence’.

Utilising queer theory, the rewritten judgment also challenges gender duality by recognising the existence of transgender, intersex, and gender minorities and acknowledging the unique harms that forced nudity inflicts on such groups.Footnote ²⁰ Traditionally, international law has reproduced a gender binary and, with that, unequal relations of power based on (cis)gender, thereby rendering gender-diverse people invisible and at risk of violence, including sexual violence, perpetrated to enforce rigid ideas about gender – that is, to maintain the heterosexual, binary order.Footnote ²¹ As a result, gender-diverse people are all but absent from international law and in international criminal trials. In the rewritten judgment, Judge Eichert makes these invisible victims visible.Footnote ²² Further, the kind of harm experienced by gender-diverse people as victims of forced nudity is different to cisgender people. For example, Judge Eichert explains how gender-diverse people’s bodies may not conform to socially policed ideas about gender and so being forced to be naked may lead to social exclusion; that their gender-diverse status may be exposed, leading to increased risk of violence; they may suffer gender dysphoria and again suffer mental anguish, humiliation, and further dehumanisation.Footnote ²³

Judicial decisions can serve as a source of knowledge and is one way in which societies construct or reconstruct reality. Feminists have criticised what is considered accepted ‘knowledge’ as representing a male perspective of ‘reality’, thereby excluding women’s experiences.Footnote ²⁴ That perspective is also predominantly a Western one. Similarly, the absence of gender minorities from international criminal trials reproduces the gender binary and excludes the particular experiences of those groups. If the ICC were to listen and publish the voices of such groups, especially those from non-Western societies, it would disrupt the power of the gender binary and redistribute some of that power to gender-diverse people.

However, such inclusion of gender-diverse people must be made in connection to gender-diverse communities themselves. Although Judge Eichert impresses the importance of listening to victims, if victims themselves are reluctant to expose their gender-diverse status then the responsibility will fall to the ICC Prosecutor to bring such existence and harms to the attention of the Chamber. Accordingly, the rewritten judgment also raises important questions about the sensitivities towards gender identity and sexuality of those who conduct investigations into atrocity crimes and the Office of the Prosecutor.

The Pre-Trial Chamber’s Original Judgment

In 2009, Pre-Trial Chamber II confirmed the charges against Mr Bemba on five counts: the war crimes of rape, murder, and pillage, and the crimes against humanity of rape and murder.Footnote ²⁵

However, the Prosecutor’s submission and the Document Containing the Charges also included the charges of torture as a war crime and as a crime against humanity, as well as outrages upon personal dignity as a war crime.Footnote ²⁶ These three charges utilised the same factual content that the Prosecutor presented to the Chamber regarding the charges of rape also imposed against Mr Bemba.

In the original confirmation of charges, the Pre-Trial Chamber refused to apply the doctrine of cumulative charging,Footnote ²⁷ stating that both torture and outrages upon personal dignity were entirely subsumed by the crime of rape, and therefore declined to confirm those charges.Footnote ²⁸

The Reimagined Decision and Critical Reflection

In her reimagined confirmation of charges, Judge Loyce Mrewa confirms the ability of the Pre-Trial Chamber to apply the doctrine of cumulative charging by using a feminist approach and reflecting on the importance of a judicial understanding of the gender implications of cumulative charging for sexual and gender-based crimes. This approach arguably prevents flawed and gender-insensitive legal reasoning and reflects the extent of victimisation on the ground.Footnote ²⁹

Judge Mrewa first focuses on demonstrating, through the jurisprudence of international tribunals,Footnote ³⁰ that cumulative charging is permitted under international criminal law as a component of the fair labelling of crimes, considered a general principle of law, although not explicitly spelled out in the Rome Statute.Footnote ³¹ Basing her reasoning on prior authoritative jurisprudence, she argues that the accused can be charged and convicted with different offences in relation to the same set of facts under international criminal law if the relevant statutory provisions are designed to protect different social interests, each offence has a distinctive element, and the charges reflect the total culpability of the accused.Footnote ³²

In the case under examination, Judge Mrewa recalls that the Prosecutor submitted cumulative charges for torture and outrages upon personal dignity which are based on the same factual conduct and are mainly related to acts of rape. She argues that rape is often used to achieve different ends, which should be carefully considered and distinguished from each other. For instance, the crimes of torture and rape protect different human rights, namely physical and mental integrity and physical autonomy and protection from non-consensual violations of bodily autonomy, respectively.Footnote ³³ The threshold of suffering is also different, as torture requires ‘severe suffering’ whereas for rape non-consensual bodily invasion or penetration is sufficient.Footnote ³⁴ Similarly, outrages upon dignity committed through acts of rape expand on the psychological harm caused by rape, reflecting on its far-reaching consequences such as humiliation, degradation, and attack on personal dignity.Footnote ³⁵

Therefore, subsuming these crimes would fail not only to respect the principle of fair labelling, but also to reflect the full culpability of the accused and the extent of the harm suffered by victims.Footnote ³⁶ Charging and convicting the accused for torture and outrages upon personal dignity allegedly committed through acts of rape shows the severity of rape, the intent to perpetrate ‘severe suffering’ as well as to humiliate, undermine personal dignity, and disempower the victim through sexual violence.

By reimagining the confirmation of charges through a feminist lens, Judge Mrewa successfully underlines the shortcomings of judicial decisions that oversimplify the breadth of lived experiences of survivors of conflict-related sexual violence and the complexity and interrelated nature of sexual crimes with other serious human rights violations and abuses.

Like Judge Eichert, Judge Mrewa places the voices of the victims at the centre of the discussion, noting that to ignore the reality of rape as a method of torture or an outrage upon personal dignity excludes the lived experiences of survivors.

While Judge Mrewa’s legal reasoning effectively encompasses a feminist lens in her analysis of cumulative charging through fair labelling of different crimes, she could have further expanded on the practical gender implications of the lack of cumulative charging for torture or outrages upon personal dignity by referring to factual elements of the case, as included in the Prosecutor’s Amended Document containing the charges. For instance, the Prosecutor indicated that:

More specifically, in the case of civilians raped in front of family members or in public locations, charging the accused solely with rape without considering the element of public humiliation through the crime of outrages upon personal dignity and related long-term psychological trauma of both survivors of sexual violence and family members forced to watch their loved ones being abused, fails to reflect the extent of victimisation on the ground and minimises the complexity of sexual violence in conflicts and its societal impact beyond the direct victims of crime.

Judge Mrewa could have also reflected on the wide range of survivors of sexual violence and the specific impact that the lack of cumulative charging could have on men or gender-diverse victims. As discussed above, historically there has been a certain reluctance to include men and boys as victims of sexual violence and whenever the abuse was recognised it was hardly seen as sexual violence ‘for the issue was often buried under the rubric of abuse or torture’.Footnote ³⁸

Concepts of masculinity, virility, and procreative capacity also play out in relation to the frequency of violence and torture aimed at male reproductive organs during conflicts, as ‘survivors of sexual torture often relate anxiety about the possibility of having children to injury of sexual organs or fear of no longer being considered fully a man or to function as a man’.Footnote ³⁹ Therefore, failure to recognise the interconnected nature of torture and conflict-related sexual violence, including through cumulative charging, gives the false idea that international crimes are gender-blind, whereas acts of rape may constitute torture and torture may be intrinsically gendered and perpetrated with the intention of causing a gender-based crime.

The Trial Chamber’s Original Judgment

In 2016, Trial Chamber III handed down the sentencing decision for Mr Bemba.Footnote ⁴⁰ Bemba had been convicted for the war crimes of murder, rape, and pillaging, and the crimes against humanity of murder and rape committed by soldiers of the MLC who were proven to be under Bemba’s effective authority and control, in CAR between 26 October 2002 and 15 March 2003.Footnote ⁴¹ For the war crime of pillaging, Bemba was sentenced to sixteen years’ imprisonment.Footnote ⁴² The ICC judgment is the first to include a conviction for rape as a war crime and a crime against humanity, marking an important turning point in terms of accountability for sexual violence as an international crime.

In determining the gravity of the crime as the principal consideration to impose the sentence,Footnote ⁴³ the Trial Chamber noted the special nature of the crimes of rape and pillaging.Footnote ⁴⁴ In particular, it considered the aggravating circumstances for both crimes, such as the location of the crime (victims’ homes, churches, hospitals), the victims’ ages (as young as ten years old for sexual violence), the duration and repeated nature of the acts (against the same victim, in the presence of the victim’s family members, and committed by multiple MLC soldiers), the perpetrator’s motives, and the violent and humiliating nature of the acts, finding beyond reasonable doubt that Bemba knew the factors relevant to prove the alleged aggravating circumstances for both rape and pillaging.Footnote ⁴⁵

In determining the aggravating circumstances, the Chamber found that ‘many of the same factors considered in relation to the circumstances aggravating the crimes of rape are equally applicable in assessing the aggravating circumstances alleged for pillaging’.Footnote ⁴⁶ For instance, after having displayed great sensitivity to the psychological, medical, and societal impact of rape on victims in CAR,Footnote ⁴⁷ while determining the particular cruelty of the crime of rape as an aggravating circumstance, it highlighted that ‘all acts of rape were committed together with, or during the course of, acts of murder and pillaging’.Footnote ⁴⁸

Likewise, when assessing the gravity of the crime of pillage, the Chamber found that ‘MLC soldiers pillaged property from CAR civilians on a large scale and with grave consequences for the victims, impacting various aspects of their personal and professional lives, often leaving victims with nothing’,Footnote ⁴⁹ including the necessities. The Chamber also found that acts of pillage were often accompanied by acts of murder and rape and always by physical and verbal abuse, threats of violence, death, and/or rape.Footnote ⁵⁰ The modus operandi for pillage and rape proved to be similar: during acts of pillaging, MLC soldiers often targeted the unarmed victims in their homes, places of civilian sanctuary such as churches and hospitals, or in the bush while seeking refuge. They committed the crime repeatedly against the same victims and families, without regard to the victims’ age, gender, social status, livelihood, or well-being, ‘such as the ability to seek treatment, arrange burial or funeral services, or even feed their families’.Footnote ⁵¹ Common to both rape and pillage was also the MLC soldiers’ underlying motive of self-compensation,Footnote ⁵² for not receiving sufficient financial gain from their military operations, confirming the traditional use of rape victims as war booty.

In sentencing Bemba for the crime of rape as a war crime and crime against humanity, the original Trial Chamber’s verdict has the merit of reiterating many of the Rome Statute’s important gender-sensitive legal standards, to provide for a detailed account of some of the most appalling rape cases against men, women, and children and even to return to expert opinions to offer a comprehensive analysis of the magnitude of negative and permanent psychiatric, medical, and social consequences faced by rape victims in CAR. However, when it comes to pillage, while the Court clearly stated that it occurred simultaneously with rape and recognised its long-term negative impact on victims’ lives and well-being,Footnote ⁵³ it failed to further expand on the broader socio-economic context and financial consequences for victims as well as to explore its gender dimension.

The Reimagined Judgment and Critical Reflection

Judge Keith fills this gap by considering the broader socio-economic context within which the crime of pillaging occurred. In her judgment, this approach helps to ‘frame the Chamber’s understanding of the gravity of the crime and the physical, social, and economic distress it creates for its victims, rather than viewing the impacts of the crime in isolation’.Footnote ⁵⁴ Keith does so by recalling that CAR is one of the poorest countries in the world, ranking 169 out of 175 countries in 2003 on a world poverty index, and by identifying the personal experiences recalled by victims and witnesses during trial.Footnote ⁵⁵ The gravity of the crime of pillage in CAR’s socio-economic context is particularly evident in the factual circumstances of the case reported in testimonies: many victims were killed in an attempt to protect their property from destruction or confiscation,Footnote ⁵⁶ showing the centrality of certain daily items that, despite not having an objective considerable financial value, were deemed necessary to preserve victims’ human dignity and survival. In doing so, Judge Keith highlights the difficulty of international criminal law in considering individual experiences in the face of mass atrocities, as well as its selectivity and inability to redress harm experienced by all conflict-related victims. She also notes the need to refrain from considering victims of international crimes as homogenous groups while also stressing the inevitable need to consider victims’ common socio-economic background. In integrating victims’ voice into the narrative, Keith demonstrates that robbing civilians of everyday items such as clothing, food, cooking utensils, foam mattresses, money, and vehicles in a context characterised by extreme poverty deprived them of their basic necessities, whose impact is still visible today.Footnote ⁵⁷ She demonstrates the grave harm caused by destruction and confiscation of property during conflict, a violation that, like many economic, social, and cultural rights violations, is often overlooked in international human rights law and, even more so, in international criminal law.Footnote ⁵⁸ Importantly, she also explores the financial loss caused by pillage, with lack of access to medical treatment and education.Footnote ⁵⁹

Judge Keith partially develops the notion of the gendered impact of poverty, which affects women differently as they often bear the sole financial responsibility for their children in times of conflict.Footnote ⁶⁰ This is particularly true when women have been victims of rape and have to raise children born out of rape, either because their husbands left them due to cultural stigma or because they have been killed. So, even when women’s financial situation is not the direct consequence of pillaging, the ‘crime of pillaging can leave women in a position of financial precariousness’.Footnote ⁶¹ While the original judgment solely focuses on the psychological impact of rape on victims, Keith comprehensively addresses the multidimensional nature of pillaging, which also includes a psychological component as it is often perpetrated in conjunction with other heinous crimes such as rape and murder. Similar to the original judgment, Keith concludes by confirming the serious gravity of the crime of pillage, highlighting its enduring impacts on victims and their families’ lives, which ‘exacerbate their vulnerabilities’.Footnote ⁶²

Judge Keith’s reimagined judgment reveals the limitations of international criminal law in investigating both the socio-economic dimension of conflict-related sexual violence and the gendered nature of economic and social rights violations that may amount to international crimes, such as pillage. However, her feminist approach, which considers the wider contextual lives of women in legal reasoning, could have been broadened.

While Judge Keith sheds light on some of the gendered aspects of pillage, such as the lack of financial means for girls to access education or medical treatment as a result of pillaging, she mainly focuses on the socio-economic dimension of the crime of pillage. An important element indicated in the original judgment which Keith could have built on is that ‘all acts of rape were committed together with, or during the course of, acts of murder and pillaging’.Footnote ⁶³ This means that all rape victims have also been victims of pillage (other than having witnessed the murder of one or more family members) in their household.

Applying feminist contextual reasoning implies considering how pillage affects men and women differently because of gender discrimination, especially when perpetrated in connection with rape and against the same victims. Given that rape disproportionately affected women and girls who were also victims of pillage within their households, while the negative consequences of pillage impacted all family members, depriving them of their basic necessities, it is self-evident that women and girls had to bear the worst physical, psychological, and financial consequences resulting from both crimes. In a context already characterised by widespread poverty and gender discrimination, pillage exacerbated women’s and girls’ vulnerabilities, for instance by depriving them of the financial resources necessary to access medical treatment to prevent sexually transmitted diseases and unwanted pregnancies that may have resulted from the rape suffered or by forcing them to resort to coping strategies, such as forced marriage or trafficking in persons for sexual exploitation (for example, ‘survival sex’) to feed the family and their children after having lost everything.Footnote ⁶⁴ As indicated also in the testimonies of some of the victims,Footnote ⁶⁵ pillage further deteriorated the already dire living conditions of many families in CAR. Extreme poverty forced many children, especially girls, to drop out of school to take up employment in the informal sector, exposing them to further risks of gender-based violence, depriving them of the opportunity to continue their education and thus access better employment opportunities with the hope to improve their lives and break the cycle of poverty and violence.

In conclusion, international justice must take seriously the intergenerational trauma for women and girls stemming from the links between conflict-related sexual violence and intergenerational poverty which is exacerbated by the crime of pillage. In a 2021 UN report by the Special Representative of the Secretary General on Sexual Violence in Conflict (SRSG-SVC), reflecting voices of survivors worldwide, sexual violence survivors from CAR noted that one of their most frequent and unmet demands over the course of the past twenty years has been the necessary financial assistance to gain economic independence, which is essential for accessing other rights (including food, healthcare, education, access to justice) for themselves and their dependants.Footnote ⁶⁶ The follow-up of the SRSG-SVC in 2022 noted that survivors of conflict-related sexual violence in CAR ‘continued to come from socioeconomically marginalized communities, including in remote and rural areas’.Footnote ⁶⁷ Providing a gender lens to economic, social, and cultural rights violations may help international justice to better reflect the extent and heterogeneity of victims’ grievances and experiences and move a step forward towards recognition and redress of the multifaceted nature of the harm suffered.

The Appeal Chamber’s Original Judgment

Having been convicted for war crimes and crimes against humanity in 2016, Mr Bemba successfully appealed his conviction in 2018. The Appeal Chamber’s acquittal of Bemba on all charges, including those relating to rape and sexual violence, was a bitter disappointment for victims and a setback for feminist advocates and scholars, who criticised the decision as allowing immunity for sexual and gender-based crimes.Footnote ⁶⁸

The original decision was in part based on the third ground of Bemba’s appeal – that the Trial Chamber used the wrong legal standard of command responsibility according to Article 28(a). Of particular interest is the Appeals Chamber’s interpretation of Article 28(a)(ii): ‘that military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution’.Footnote ⁶⁹ In the original judgment, the majority of the Appeals Chamber accepted Bemba’s argument that commanders were allowed to undertake ‘cost/benefit analysis when deciding which measures to take, bearing in mind their overall responsibility to prevent and repress crimes committed by their subordinates’, thereby de-emphasising the word ‘all’ and instead emphasising the words ‘necessary’ and ‘reasonable’.Footnote ⁷⁰ Additionally, the Chamber introduced the concept of a ‘remote commander’ as Bemba was located in the DRC.Footnote ⁷¹ According to the Appeals Chamber, this impacted on what ‘necessary and reasonable’ measures were ‘feasible’.Footnote ⁷²

The Rewritten Judgment and Critical Reflection

Judges Suzanne Varrall and Sarah Williams focus on Article 28(a)(ii) and the failure of a commander to take ‘all necessary and reasonable measures’. They begin by centralising the concept of protection under international humanitarian law (IHL) and argue that this rationale informs and underlies command responsibility itself.Footnote ⁷³ Furthermore, the rewritten judgment utilises a textual interpretation of ‘necessary’ and ‘reasonable’ in Article 28(a)(ii) to articulate the ‘correct’ legal standard, finding that there are minimum actions that must be taken by commanders.Footnote ⁷⁴ Unlike the original judgment, Varrall and Williams do not limit those minimum necessary actions according to the geographical remoteness of the commander. Applying what they argue is the ‘correct’ legal standard, the rewritten judgment dismisses Bemba’s appeal as he failed to take the minimum necessary actions informed by the protective concept of IHL which included, inter alia, ensuring troops are properly trained in IHL.

Judges Varrall and Williams place a feminist lens at the heart of their rewritten judgment by first centralising the protective concept of IHL. One of the key principles of IHL is the protection of people who do not take part in the fighting. Importantly, this includes the protection of civilians against all forms of violence and degrading treatment.Footnote ⁷⁵ Additionally, certain groups considered especially vulnerable, including women and girls, are specified as needing special protection from certain kinds of violence.Footnote ⁷⁶ Article 27 of Additional Protocol I to the Geneva Conventions dictates that women are to be especially protected against rape and sexual violence. Varrall and Williams state that this concept of protection also underlies the notion of command responsibility. Under IHL, commanders are expected to exert control over their forces and train them in IHL, including the obligation to protect civilians.Footnote ⁷⁷ Article 28(a) holds commanders responsible for the crimes committed by their own subordinates, including violence against civilians. Consequently, Varrall and Williams argue that the rationale for command responsibility must be informed by the protective principle of IHL. Therefore, the protection of everyone from rape and sexual violence, as a central part of the concept of protection, informs the rewritten judgment’s approach to the legal standard of ‘all necessary and reasonable’ measures.

Another key principle under IHL is that of ‘proportionality’. According to this principle, some degree of harm to civilians is permitted, provided it is not disproportionate to the anticipated military advantage.Footnote ⁷⁸ However, Varrall and Williams state that there is no possible military advantage to be gained by the targeting of civilians for sexual violence.Footnote ⁷⁹ By taking this argument off the table, the principle of protection in the context of crimes of rape and sexual violence will always be a paramount consideration. This is a powerful feminist statement. Due to the prevalence of sexual and gender-based violence during armed conflict, particularly against women and girls, this approach recognises both the gravity of the harm such violence causes and elevates the protection of vulnerable groups of civilians above that of military advantage. Moreover, the rewritten judgment links this to command responsibility, arguing that all commanders should be considered to be effectively on notice of the risk of sexual and gender-based violence and of their duty to take all necessary and reasonable measures to minimise it.Footnote ⁸⁰ Overall, although absent from the original judgment, Varrall and Williams consider their legal reasoning having regard to the particular nature of the crimes committed by MLC forces, specifically rape and sexual violence.

When discussing the ‘correct’ legal standard of Article 28(a)(ii), the rewritten judgment uses a textual interpretation of ‘all necessary and reasonable measures’ according to the Vienna Convention on the Law of Treaties.Footnote ⁸¹ Because the protective concept of IHL underlies command responsibility, Varrall and Williams begin by asserting that there must be a high standard expected of commanders to exercise control over their troops.Footnote ⁸² In contrast to the original judgment, Varrall and Williams emphasise the word ‘all’ so that what is determined as ‘necessary and reasonable’ cannot be watered down.Footnote ⁸³ Accordingly, assessment of measures must start with that which is ‘necessary’ to prevent or repress the commission of crimes by subordinates. Importantly, what is necessary should be informed by the obligation to protect civilians from known risks associated with armed conflict: sexual and gender-based violence.

Judges Varrall and Williams then break down the three distinct obligations created by Article 28(a)(ii): ‘first to prevent crimes; second to repress crimes; and third to submit criminal matters to competent authorities for investigation and prosecution’.Footnote ⁸⁴ They link the protective rationale of IHL to each of these obligations. Applying this reasoning to the facts, Varrall and Williams determine that part of the basic requirements of responsible command includes ensuring that subordinates are properly trained in the rules of IHL.Footnote ⁸⁵ As already set out, essential to these rules is the principle of protection of civilians from risks that armed conflict creates.Footnote ⁸⁶ A further basic requirement of responsible command is ensuring adequate supervision of troops, especially where there are known risks to civilians due to the armed conflict, especially of rape and sexual violence.Footnote ⁸⁷ Leaving open the possibility that there may be circumstances where such measures would not be reasonable, the rewritten judgment makes it clear that this was not the case with Bemba. The rewritten judgment finds that Bemba had extensive material ability to prevent or repress crimes and failed to take necessary and reasonable measures arising from the basic requirements of responsible command.Footnote ⁸⁸ Significantly, this included a failure to ensure that MLC troops were trained in the rules of IHL and adequate supervision of troops.

The rewritten judgment’s approach to Article 28(a)(ii) frames sexual and gender-based violence during armed conflict as a central concern for commanders where their failure to train and supervise their troops contributes to an environment of rape and sexual violence. The judgment also elevates the so-called special protected status according to IHL of women and girls above that of military necessity or advantage in a way that challenges the traditional patriarchal view that sexual violence against civilians is inevitable or, in some cases, purposefully weaponised against them. Judges Varrall and Williams are careful not to limit the protection of victims to only women and girls. Such an articulation of ‘women and girls’ as an especially vulnerable and protected group under IHL, while a feminist position in and of itself (for reasons outlined above), is equally contested within feminist scholarship. The merging of ‘womenandchildren’ as one category under international law has been critiqued as both erasing the agency and individual experiences of children and infantilising women as passive victims of violence in need of masculine protection.Footnote ⁸⁹ Therefore, the rewritten judgment avoids similar criticism of being a continuation of (a Western patriarchal) law essentialising the experience of women and the assumption that women lack agency and individual personhood separate to that of children. However, although Varrall and Williams specifically mention men as a class of victims, they do not acknowledge gender-diverse people, which may be criticised as silencing the experiences of such victims of sexual and gender-based violence.

Judges Varrall and Williams’ approach also has implications for the responsibility of commanders that go beyond Mr Bemba. Although the rewritten judgment highlights the importance of assessing ‘reasonable’ measures contextually and that such measures do not need to be successful, the assertion that commanders should be considered put ‘on notice’ regarding sexual and gender-based crimes raises the issue of strict liability. As noted in the rewritten judgment itself, there is a significant link between increased sexual violence and armed conflict. It is difficult to imagine a situation where such crimes are being committed by subordinates, and a commander, although they may make some efforts to repress those crimes, would not be found to have responsibility to them given the emphasis in the rewritten judgment on Mr Bemba’s overall lack of ‘adequate’ supervision of MLC forces. During the drafting stages of Article 28(a), drafters were careful not to create such situations of strict liability. However, this risk of strict liability should be considered against the risk of ongoing impunity for sexual and gender-based crimes. It can be argued that the duty on commanders should be a heavy burden.

The Pre-Trial Chamber Original Judgment

In 2019, Pre-Trial Chamber II partially confirmed charges of war crimes and crimes against humanity against Mr Alfred Yekatom concerning events in CAR between 5 December 2013 and August 2014.Footnote ⁹² In March 2020, pursuant to Article 61(9) of the Rome Statute, the prosecution requested the Pre-Trial Chamber to amend the charge of rape confirmed against Ngaïssona to include and confirm a second instance of rape under Counts 40 and 41 of the Document Containing the Charges (DCC) and notified its intention to seek to add additional charges against Yekatom to include the war crimes of rape and sexual violence.Footnote ⁹³ However, Pre-Trial Chamber II declined to include those charges, adopting a ‘precautionary and restrictive approach’, noting that such an approach was required in order to avoid ‘unjustified recourse to this prerogative by the Prosecutor turn[ing] into abuse’.Footnote ⁹⁴ The Chamber cautioned the prosecution for continuing to investigate following the confirmation of charges and noted that Article 61(9), while sanctioned, cannot be used to address ‘gaps’ in the case of the prosecution.Footnote ⁹⁵ Throughout its reasoning, the Chamber put at the centre the fundamental rights of the accused, including the right to be tried expeditiously, affirming that such was the rationale of Article 61(9) during the preparatory works of the Statute, which also guides international human rights treaties and the jurisprudence of international criminal tribunals in relation to implementation of Article 61(9) of the Statute. Importantly, the Chamber’s reasoning almost exclusively focused on the request to amend charges for the accused Ngaïssona, on which also heavily relied the decision on the Prosecutor’s request to add additional charges against Yekatom, with no separate analysis. Consequently, although the Prosecutor submitted witness statements from victims detailing alleged sexual violence, there were no charges of rape against Ngaïssona or Yekatom.

The Rewritten Judgment and Critical Review

Judge Valerie Oosterveld expertly re-examines Article 61(9) of the Rome Statute, granting the Prosecutor’s request to introduce additional charges against Yekatom, while she rejects the request to amend charges against Ngaïssona by including and confirming a second instance of rape. Contrary to the original decision, Judge Oosterveld’s arguments largely focus on Yekatom, rather than Ngaïssona, distinguishing the Prosecutor’s request to amend charges for Ngaïssona from the request to add additional charges for Yekatom on the basis that the latter ‘considers entirely new charges with new evidence justified by different reasons’ while the former was aimed at ‘reintroducing non-confirmed charges for which evidence was lacking’.Footnote ⁹⁶ As a result, regarding Ngaïssona, Oosterveld rejects the request for amendment as it ‘would not satisfy the accused’s fair trial rights’.Footnote ⁹⁷

Judge Oosterveld begins by partially challenging the procedural history of the caseFootnote ⁹⁸ and briefly examines the arguments of both the defence and the prosecution.Footnote ⁹⁹ Importantly, she further substantiates what in the original Prosecutor’s submission was vaguely anticipated as mere notice of intention, by clarifying that the additional charges of rape and sexual slavery as war crimes against Yekatom are ‘fully substantiated and more fully reflect his alleged culpability’ and that, in light of the ‘seriousness and importance of these charges, the proposed amendment is in the interest of justice’.Footnote ¹⁰⁰ Judge Oosterveld also anticipates the Chamber’s main objection on the need to ensure the right to defence by introducing an important factual element, namely that no trial date has been set and highlighting the Court’s duty to establish the truth.Footnote ¹⁰¹ Importantly, she integrates the view of the common legal representatives of the former child soldiers and of the victims of other crimes (CLRV), stating that it is in the interest of the victims that the proposed charges are added, considering also that concerns about the lack of charges related to gender-based crimes has already been expressed by the CLRV in their 9 July 2019 submissions.Footnote ¹⁰² Such an approach acknowledges that individual victims of sexual and gender-based crimes do not often report those crimes immediately, due to trauma and cultural or social barriers that are not always apparent to an international tribunal located outside of that context. Access to justice is better served when these localised and victim-centred contexts are recognised and mainstreamed throughout the entire trial process.

Judge Oosterveld’s core argument revolves around the three Article 61(9) factors, namely: (1) the importance of the additional charges to ensure a complete understanding and full consideration of the relevant issues; (2) the reasonable diligence of the Prosecutor in bringing additional charges, including the reasonableness of continuing investigations after the Pre-Trial Chamber’s confirmation of charges; and (3) whether the adjudication of additional charges would cause undue prejudice to the rights of the accused.Footnote ¹⁰³ Regarding the first factor, Judge Oosterveld cites the Court’s jurisprudence as well as that of other international criminal tribunals such as the International Criminal Tribunal for the Former Yugoslavia (ICTY), which recognised that ‘the duty to establish the truth is not limited to the time before the confirmation hearing’ so the Prosecutor must be allowed to continue the investigation beyond the confirmation hearing.Footnote ¹⁰⁴ Consequently, she found that, since the war crimes of rape and sexual slavery are the only proposed charges of conflict-related sexual violence against the accused, ‘the victims, in particular, have an interest in the full consideration of the responsibility of the accused and the extent of victimisation’.Footnote ¹⁰⁵

The rewritten judgment’s feminist approach is most obvious regarding discussion of the second factor. Judge Oosterveld clarifies that the underlying rationale of Article 61(9) is that the continued investigation should only be related to essential pieces of evidence that were not known or could not have been collected by the Prosecutor prior to the confirmation hearing and the reasons for such an investigation must be properly justified.Footnote ¹⁰⁶ Judge Oosterveld comprehensively expands on the Prosecutor’s original submission by meticulously detailing the factual circumstances hampering the Prosecutor in providing such evidence prior to the confirmation hearing. In particular, Oosterveld demonstrates the material lack of time for the Prosecutor to carry out field missions to CAR, including during the COVID-19 pandemic and related travel restrictions, as well as to assess risks related to witness and victim protection and related procedural matters, such as translation into French. Importantly, Oosterveld incorporates a feminist approach by highlighting the inherent challenges related to collecting credible evidence on conflict-related sexual violence, such as survivors’ reluctance in revealing the crime suffered due to security threats, as well as societal and cultural stigma. Oosterveld also recalls how trauma, lack of meaningful protection mechanisms, and health reasons should not be underestimated when dealing with survivors of conflict-related sexual violence.Footnote ¹⁰⁷

Regarding the third factor, in assessing the right to a fair trial of the accused, Judge Oosterveld considers the duration of pre-trial custody, the extent of the delay in case of adjudication of additional charges, and whether it would amount to undue delay.Footnote ¹⁰⁸ She skilfully relies on the same ICC jurisprudence – namely Al Hassan and Ruto and SangFootnote ¹⁰⁹ – already cited in the original judgment, proving that it could equally serve to substantiate her arguments and showing how the Court already previously balanced the search for the truth with the fairness and expeditiousness of the proceedings, prioritising the former over the latter.Footnote ¹¹⁰ Judge Oosterveld concludes by affirming that the proposed charges are limited both in scope and time and connected to existing charges. Hence, only the defence would have to carry out an additional investigation, which would be narrow in focus, in consideration also of the fact that the trial is unlikely to happen in the near future.Footnote ¹¹¹ Finally, Oosterveld also offers mitigating steps to ensure the rights of the accused, such as prompt disclosure of witness statements to the defence and subtracting time in custody in case of conviction, showing that the Chamber could have opted for a less restrictive approach, better balancing two competing and equally relevant interests.Footnote ¹¹²

Judge Oosterveld’s reimagined judgment clearly highlights how a restrictive and excessively procedural approach to the amendment of charges following the Pre-Trial Chamber’s confirmation of charges poorly serves the interest of justice, failing to recognise the extent and complexity of survivors’ experiences and needs, especially with regard to conflict-related sexual violence. The Chamber’s blank dismissal of the charges of rape and sexual slavery, justified almost exclusively on the need to safeguard the accused’s right to defence, without even minimally factoring in the gravity of the crimes allegedly committed or the severity of the consequences on victims’ rights and lives, is concerning for international justice. Such a decision confirms, inter alia, how the gender analysis referred to in ICC policy papers is still largely lacking in practice and needs to be updated and mainstreamed throughout all phases of the proceedings.Footnote ¹¹³

By following the procedural and legal steps of the original judgment, Judge Oosterveld fills this gap, attributing gender-based crimes the centrality they deserve in an international criminal tribunal. While carefully considering the procedural and restrictive approach of the Chamber, Oosterveld strikes a balance between the need to preserve the accused’s right to a fair trial – including by offering mitigating measures to ensure an expeditious trial – and the duty to establish the truth in the interest of justice, adopting a victim-centred, trauma-informed, and gender-sensitive approach. Her feminist approach is particularly evident in the examination of the second factor, namely the reasonableness of continuing investigation after the confirmation of charges. In this context, she offers factual details on the two incidents affecting the additional victims which were missing in the original Prosecutor’s request and also delves into the specific challenges related to the collection of evidence of conflict-related sexual violence. While some of these challenges are inherent to most survivors of human rights violations, such as security risks, lack of protection measures, and investigators’ difficulties to find confidential spaces to conduct interviews during ongoing conflicts, specific cultural and societal barriers leading to further stigmatisation for survivors of conflict-related sexual violence were also highlighted. This paragraph is central to the purpose of rewriting ICC decisions through a gendered lens and could have probably been further expanded, for instance by providing a more detailed analysis on the crime of sexual slavery and additional challenges of individuals subjected to extreme forms of exploitation and completely deprived of their freedom and agency to timely and meaningfully testify on the multiple violations suffered without the risk of re-victimisation. In addition, this feminist approach could have been integrated throughout the other two factors examined in the rewritten judgment, namely that of the importance of the additional allegations to a complete understanding of the Prosecutor’s case and that of whether the additional charges would cause undue prejudice to the rights of the accused. While this was partially done, it could be further strengthened, for instance highlighting the gravity of the crimes by referring to victims’ testimonies, as well as to CLRV’s previous submissions.

Overall, Judge Oosterveld illustrates, using a feminist approach, that it is possible to respect the rationale of Article 61(9) of the Rome Statute exercising caution on the risk of abuse by the Prosecutor, while fully recognising the extent of victims’ lives and experiences, in the interest of justice and truth. Judge Oosterveld’s rewritten judgment also highlights the importance of mainstreaming a gender-sensitive and trauma-informed analysis throughout all phases of judicial proceedings and not just during the investigation phase. While survivors of gross human rights and humanitarian law violations share similar challenges in accessing international justice, survivors of conflict-related sexual violence face additional cultural and social barriers, such as family and community stigma and lack of social and economic support which may deter them from testifying before an international accountability body. The risk of re-victimisation is also higher for survivors of conflict-related sexual violence, especially when they face social exclusion, have to raise children born out of rape, or are rejected by their families. Victims of sexual slavery in particular, due to the severe and protracted multifaceted exploitation, are often compromised in their capacity to take decisions for themselves, and the time required to recover from the long-term effects of such trauma may at times be incompatible with the legalistic requirements of tribunals. However, Judge Oosterveld proves that a balance between respect for the rights of the accused and recognition of the extent of victimisation on the ground is possible even when dealing with amendment of charges following a confirmation decision and that a feminist approach is key to avoiding sexual violence charges being left out of international courtrooms, failing to provide survivors with justice and redress, which is the ultimate goal for which international tribunals were created.

Gravity

1. 9. In assessing the gravity of the crime, the Chamber considers Mr Bemba’s ongoing failure, as someone acting as a military commander, to fulfil his duty to prevent or repress the crime of pillaging. Such failure to act may have the implicit effect of encouraging subordinates to believe they can commit further crimes with impunity. Although this issue has not been previously considered by this Court, such reasoning accords with jurisprudence from the ICTY. In the Halilović case, the Trial Chamber considered ‘[t]he argument that a failure to punish a crime (committed by subordinates) is tacit acceptance of its commission is not without merit’.Footnote ²⁴⁸ Drawing on the words of the International Committee of the Red Cross (ICRC) Commentary to the Additional Protocol, the ICTY Trial Chamber held that a commander who fails to act has ‘tolerated breaches of the law of armed conflict’.Footnote ²⁴⁹ In view of such judicial reasoning, this Chamber finds that Mr Bemba’s ongoing failure to act is of serious gravity.

2. 10. In its assessment of the gravity of the crime, the Chamber also considers the following factors listed in Rule 145(1)(c): the circumstances of manner, time, and location, and the extent of damage caused, in particular the harm caused to the victims and their families. Before doing so, and in the exercise of its discretion in identifying and assessing relevant factors, the Chamber will first consider the broader socio-economic context within which the crime of pillaging occurred. This contextual approach helps frame the Chamber’s understanding of the gravity of the crime and the physical, social, and economic distress it creates for its victims, rather than viewing the impacts of the crime in isolation.

3. 11. The Chamber is cognisant that in assessing the gravity of the crime of pillaging, it is also important to consider the harm caused from multiple dimensions. This requires the Chamber to consider the compounding effects of the harm, particularly when viewed within the socio-economic context of the CAR, and to assess the harm against victims not as a homogenous group but as persons with their own unique lived experiences resulting from the crime of pillaging.

Financial Impacts

1. 21. The Chamber heard evidence of the severe financial impacts that the acts of pillaging had on victims. Among these, direct financial losses were incurred, including money that was taken directly from victims or their homes, much of it representing their hard-earned savings. P-87, for instance, spoke of the theft of 67,000 francs that she had earned from selling coffee and 600,000 francs that belonged to her parents.Footnote ²⁷³ It also includes the costs of trying to replace or rebuild what was pillaged. P-108, for instance, explained that the estimated loss they incurred from the pillaging is between 20–30 million francs.Footnote ²⁷⁴ He further explained that even today, he has not been able to return the house to its former state because as a civil servant his salary was owed in arrears and he had existing bank loans, so it was not easy to repair the house.Footnote ²⁷⁵ Other witnesses also spoke of being unable to rebuild their lives and their homes owing to the financial constraints they face as a result of the pillaging.Footnote ²⁷⁶

2. 22. The acts of pillaging also directly impacted victims’ businesses. Many lost items that were crucial to their business operations; without such items, their businesses ceased to operate. The Chamber, for instance, found that V-20’s tailoring business never recovered after his sewing machines were pillaged.Footnote ²⁷⁷ V-20 described how the loss of the machines and his clients’ clothing still makes him very sad.Footnote ²⁷⁸ Likewise, Witness P-23 testified about the many items pillaged from his house, including the vehicle he used to earn a living.Footnote ²⁷⁹ He later found the ruins of his car after all its parts had been taken; this was the only item of his that was found.Footnote ²⁸⁰ Other witnesses spoke of their livestock or food supplies being pillaged – items that were essential to their business that provided a means of subsistence.Footnote ²⁸¹

3. 23. The financial impact on businesses and the loss of potential earnings is hard to quantify and was not fully explored during witnesses’ testimony. However, it is evident that losing a business, which generates an income, has a severe and enduring impact on victims, particularly given the socio-economic context in the CAR.

4. 24. The Chamber recognises that while the monetary value of items pillaged from the victims varies depending on their personal and professional circumstances, these items were essential to their lives. Consequently, regardless of the actual monetary value of the items pillaged, they were of great value to the victims and their loss resulted in severe consequences for the victims; many are living in prolonged poverty unable to rebuild their lives and their homes.

5. 25. The financial harm caused by the pillaging continues to impact other aspects of victims’ lives, including their education. Some witnesses testified that as a result of the pillaging, they no longer have access to education as they cannot afford it. As Witness A/555/08 recalled, she was a child attending school when soldiers came to her area. She was then raped and abducted by the soldiers and eventually managed to flee and return to her family home four years later. On return she found her family ‘had been totally stripped of their belongings. They were living in poverty. They were farming and involved in a little bit of trading in order to be able to afford something to eat, even clothing themselves was difficult’.Footnote ²⁸² As a result of the pillaging, her father can no longer afford to send her to school and she is deeply hurt by this.Footnote ²⁸³ She talked about seeing some of her peers who managed to complete their schooling and who have managed to secure employment with salaries.Footnote ²⁸⁴ She is severely depressed and has suicidal thoughts as a result of what happened to her and when she sees the huge difference between her life and others who work and have a salary.Footnote ²⁸⁵

6. 26. A/555/08’s experience also highlights the intergenerational impact of pillaging vis-à-vis access to education, with her children also unable to attend school. She explained that she survives by the small-scale trading of vegetables, enabling her to just manage to feed and take care of her children, but she lacks the financial resources to send them to school.Footnote ²⁸⁶

7. 27. The intergenerational impact of pillaging on access to education is also evident in A/480/08’s testimony. She explained that due to the events that occurred, including the pillaging, her children have been unable to return to school as there is no money to pay for it.Footnote ²⁸⁷

8. 28. The Chamber notes the overarching importance of an education, with education being one of the UN Sustainable Development Goals that form part of a blueprint for global peace and prosperity.Footnote ²⁸⁸ An education provides people with knowledge and skills to help them gain employment, which links to better health and greater financial resources. It is, therefore, a critical tool that is essential to helping lift victims and their families out of poverty. For women and girls, in particular, education provides them with opportunities that may enable them to have greater autonomy over their lives. It represents hope and aspirations for a future that includes secure employment, enabling them to determine their own lives, rather than being dependent on family.

9. 29. The harm resulting from pillaging therefore extends beyond the immediate loss of quantifiable possessions, to that which is intangible: the loss of an individual’s access to education and the resulting loss of opportunities associated with an education. Given the socio-economic context in the CAR, this Chamber considers that the intergenerational loss of access to education is significant and contributes to the enduring impact of pillaging on victims.

10. 30. In addition to impacting individuals’ access to education, the crime of pillaging has also resulted in many victims lacking the financial resources to access medical treatment. The Chamber, for instance, found that P-73 lacked money to pay for medical treatment following the pillaging.Footnote ²⁸⁹

11. 31. The loss of financial resources to pay for healthcare has added significance when viewing this factor contextually. As considered below, the Chamber found that the pillaging was accompanied by other crimes, including rape and other sexual violence against men, women, and children. As a result of these crimes, many victims have medical issues, including HIV, which require ongoing medical treatment.Footnote ²⁹⁰ However, the Chamber heard evidence that many of these victims were left destitute following the pillaging and are unable to afford the treatment.Footnote ²⁹¹ For instance, P-81 testified that as a consequence of the rape, she has stomach problems but she cannot afford to get ‘treatment from an appropriate doctor’. As she has no one to help her pay for a doctor, she gets traditional treatment but ‘the results have not been good’.Footnote ²⁹² Other victims, including Witness P-68, have to rely on family for financial help for their treatment.Footnote ²⁹³ The lack of access to treatment for ongoing medical conditions caused by rape highlights the intersectionality of the crimes and the continuing vulnerabilities of victims.

12. 32. The Chamber heard evidence regarding the shame and humiliation facing victims of rape and other sexual violence, which has devastated their lives and communities.Footnote ²⁹⁴ Cognisant of this, the Chamber further considers that the reliance on family members to assist with payment for medical treatment adds considerable stress to the burdens they are already carrying.

13. 33. The impact of pillaging and the consequent lack of financial means to access medical treatment is viewed within the context of the situation in the CAR. The International Federation of Human Rights found that despite the trauma victims suffering due to the crimes committed, there is no national support programme to provide them with medical and psychological assistance. Yet such support is essential given the prohibitive cost of care and the fact that social security is collapsing.Footnote ²⁹⁵

14. 34. The Chamber also recognises a gendered dimension to the impact of pillaging in relation to the poverty in the CAR. Although many live in poverty, the situation facing women with sole financial responsibility for their children is particularly acute. There are numerous reasons why they bear such responsibility. For instance, some husbands left their rape-victim wives due to the associated cultural stigma rape brings to the family, particularly where there are children born of rape.Footnote ²⁹⁶ In other cases, husbands were killed, either outright or as a result of injuries sustained by violent physical attacks. Faced with severe financial hardship, some women received support from organisations such as Medicines sans Frontiers or Caritas,Footnote ²⁹⁷ although that support was intermittent and is no longer available. With sole financial responsibility for their children, the Chamber notes that the crime of pillaging has left some women in a position of desperate financial precariousness and vulnerability. The Chamber finds, therefore, that the crime of pillaging has an additional and significant impact on women and children.

Psychological Impact

1. 35. The crime of pillaging also has a direct psychological impact on the victims. As Witness P-108 explained, prior to the conflict he had a good life, working as a magistrate, and he did everything he could to make his family comfortable. Then, ‘in one day’s time, we had to leave, we had to sleep on rugs on the floor. Before we were able to sleep in proper beds and, therefore, the children felt the impact of that; and still today they’re suffering from that, because in one day they had lost everything. So there is really truly psychological impact’.Footnote ²⁹⁸ P-108 estimated that if the moral and psychological damage to his family were included in the cost of harm, ‘it would bring the amount up to 60 million francs CFA’.Footnote ²⁹⁹

2. 36. The Chamber notes that the full psychological impact on victims of the crime of pillaging is hard to gauge given many victims were subjected to other crimes. Further, most of the evidence adduced regarding the psychological impacts of crime focused on the impact of rape on victims and their families rather than the other crimes. Given this, the Chamber is unable to make a finding on the psychological impact of the crime of pillaging alone. However, in assessing the gravity of the crime, and drawing on the testimony of Dr Reicherter, the Chamber recognises the compounding effects of traumatic events, including pillaging, where one traumatic event has a clear mental health impact that is then exacerbated by other risk factors, including other acts of violence or the death of family.Footnote ³⁰⁰

3. 37. The Chamber finds, therefore, that the harm caused by the acts of pillaging is multidimensional. It has an enduring impact on victims and their families’ lives that exacerbate their vulnerabilities. In particular, the Chamber has considered the intergenerational and gendered impact of the crime of pillaging, which has a significant impact on women, children, and other victims of rape and sexual violence. Such impact goes beyond the quantifiable harm caused by pillaging, namely the financial loss associated with pillaged belongings, to the intangible, non-financial harm. As mentioned, this includes the loss of agency and opportunities associated with an education that victims can no longer afford to access.

4. 38. In view of the above circumstances, in particular the harm caused to victims and their families, the Chamber finds that the crime of pillaging is of serious gravity.

Victim Is Particularly Defenceless

1. 40. The Chamber found that civilians, including children, were subject to pillaging without distinction as to age, gender, profession, or social status.Footnote ³⁰² Armed MLC soldiers targeted these unarmed civilians in or around their homes or their businesses, places of sanctuary including churches and hospitals, on MLC bases, in isolated locations including the bush, and/or while seeking refuge.Footnote ³⁰³

2. 41. Witnesses spoke of the general sense of insecurity and chaos that prevailed during this period, with the arrival of armed soldiers causing many to flee the area.Footnote ³⁰⁴ Confronted with armed soldiers pillaging their personal belongings, victims were rendered defenceless. As P-87 stated in response to a question whether the items were taken with her consent:

   Well, they come into your house, they have weapons and they say, ‘Give us the money, give us the money and we won’t fire’, but if we don’t give them our belongings, if we put up a resistance, they will kill us. So when they came into our houses, we would just let them do what they wanted and take away our belongings. It was to save our own lives.Footnote ³⁰⁵

3. 42. In view of the above, the Chamber finds that the crime of pillaging was committed where the victims were particularly defenceless, as an aggravating circumstance provided in Rule 145(2)(b)(iii).

Commission of the Crime with Particular Cruelty

1. 43. The Chamber found that acts of pillaging were often accompanied by other crimes, including rape, murder, and other forms or threats of physical violence or verbal abuse.Footnote ³⁰⁶ As P-6 recalled: ‘The looting was concomitant with the acts of rape. It was at the time the MLC troops were being deployed in the neighbourhoods when they went from house-to-house, searching these houses. At one and at the same time as the rapes were being committed, property of interest was being stolen.’Footnote ³⁰⁷

2. 44. The Chamber heard from multiple survivors, both male and female, who were raped during the pillaging events. P-68 recalled how she was fleeing to safety when she and her sister-in-law were attacked by soldiers, who took their possessions. She was then threatened with a weapon and raped by two soldiers; her sister-in-law was raped by three soldiers.Footnote ³⁰⁸ Others who attempted to resist the pillaging were beaten or killed. P-69 testified that MLC soldiers entered his compound and demanded money from his sister. When she refused, they threw her on the ground, taking the money off her.Footnote ³⁰⁹ She was then shot ‘a bullet right into the head … it was as if an animal’s skull had been hit’.Footnote ³¹⁰

3. 45. The Chamber also found that many victims and their family members were subject to multiple acts of pillaging and other forms of violence.Footnote ³¹¹ For instance, P-87 testified that groups of armed soldiers came to her house twice on the same day just hours apart. The first time they took the TV, radio, furniture, and mattresses.Footnote ³¹² The second time they came, she was raped by multiple soldiers while other soldiers were pillaging the savings she had earned from selling coffee.Footnote ³¹³

4. 46. Based on the factors considered above, the Chamber finds that the war crime of pillaging was committed with particular cruelty, as an aggravating circumstance under Rule 145(2)(b)(iv).

Obligation to Prevent

1. 28. To ‘prevent’ means ‘to stop something from happening or someone from doing something’.Footnote ³⁵³ An obligation to prevent therefore exists in relation to a future event, and in the context of Article 28(a)(ii), a future crime. What measures are necessary and reasonable for a commander to take to prevent the commission of crimes by subordinates will be heavily context-dependent and should be determined on a case-by-case basis. However, the following observations are relevant universally on the basis that preventive measures are those measures that must be undertaken prior to the commission of a crime.

2. 29. First, the obligation to take measures to prevent crimes compels commanders to make an assessment of the known and likely risks of military operations. The protective rationale of IHL underpinning command responsibility further requires commanders to have particular regard to the increased risk of sexual violence that accompanies armed conflicts, and the disproportionate impact of this on women and children. Armed conflict brings with it a range of characteristic and notorious risks, including but not limited to an increased likelihood of sexual and gender-based violence. According to the 2007 Paris Principles, ‘[g]ender inequalities, discrimination and violence are frequently exacerbated in times of armed conflict’.Footnote ³⁵⁴ It is a deeply distressing but well-known fact that there is a long-standing tendency of troops engaged in armed conflict, especially male combatants, to commit such crimes, particularly but not only against women and girls, and that this is amplified by failures of command to exercise proper control. It is the view of the Appeals Chamber that the commonly understood risk to women and girls that accompanies any and all armed conflicts must therefore inform the legal standards of both the knowledge element of command responsibility, and the requirement to take all necessary and reasonable measures.

3. 30. Second, the obligation to take preventive measures encompasses the broadest temporal scope of the three obligations. This obligation does not only arise in the days or hours before a crime may be committed; nor does it only take effect when troops are deployed, or operations commence. Furthermore, preventive measures will not only be required in the days of operational planning or training. The obligation to take preventive measures will exist from the moment an individual takes command of troops, and it will continue to exist for the duration that the individual maintains a position of command.

4. 31. Given commanders must consider the risks of certain crimes being committed by troops, particularly sexual violence crimes against women and children, and given the obligation to take preventive measures is ongoing from the time an individual takes command, certain basic requirements must be satisfied in order to fulfil the obligation to take all necessary and reasonable preventive measures. As noted above, some obligations under IHL are fundamental, such as the responsibility of commanders to ensure their troops are aware of their obligations under IHL.Footnote ³⁵⁵ Thus training troops in IHL, and particularly making them aware of prohibitions on sexual violence, at the earliest opportunity possible would constitute one such basic requirement of preventive measures. As would issuing lawful orders in accordance with the rules and principles of IHL. In addition, taking steps to ensure adequate supervision of troops and to establish clear communication and investigative and disciplinary procedures would also form basic requirements from the time of assuming command.

Obligation to Repress

1. 32. To ‘repress’ means ‘to not allow something … to be expressed’; ‘to control what people do, especially by using force’.Footnote ³⁵⁶ Repression relates to something that is occurring in the present, and in the context of Article 28(a)(ii), the contemporaneous commission of a crime. The temporal context is critical to assessing what measures are necessary and reasonable for a commander to take to repress the commission of crimes by his or her subordinates. Unlike preventive measures, measures to repress crimes must be taken in response to unlawful conduct that has occurred and is continuing, or may continue, to occur. A commander must take all necessary and reasonable measures to repress the criminal conduct at the earliest possible opportunity, and must continue to do so for so long as the unlawful conduct or its probability persists.

2. 33. The circumstances will determine what form such measures must take, and which lie within a commander’s power. Once again, however, the basic requirements of responsible command are instructive in such an assessment. Measures to repress criminal conduct must be responsive and timely and should at a minimum involve adequate supervision of troops and the issuance of lawful orders. Furthermore, investigative and disciplinary action must be undertaken to the fullest extent possible. Depending on the temporal span of the criminal activity, additional measures may become necessary and reasonable over time, including resolving the shortcomings or absence of investigative and disciplinary procedures. As with preventive measures, a commander’s obligation cannot be considered to be fulfilled on the basis of a one-off response.

Obligation to Submit Matter to Competent Authorities for Investigation and Prosecution

1. 34. To ‘submit’ means ‘to give or offer something for a decision to be made by others’.Footnote ³⁵⁷ In the context of Article 28(a)(ii), what is to be submitted to the competent authorities for investigation and prosecution is the details of crimes that have already been committed. To do so will require a commander to facilitate the collection and communication of such details. There are no specifications under Article 28(a)(ii) as to what form this submission must take. It can be assumed, however, that a basic requirement of fulfilling this obligation necessitates, to the extent it is within a commander’s power, that he or she must ensure all the known details of criminal conduct are collected, documented, and provided in a fulsome, unprejudiced, and timely manner.

2. 35. This obligation also entails another complexity, through the use of the adjective ‘competent’ to describe the nature of the relevant authority. A competent authority is not defined in Article 28(a)(ii); however, elsewhere the Rome Statute does provide guidance on the competence of national judicial systems.Footnote ³⁵⁸ The inability to carry out investigations and prosecutions is understood here as ‘a total or substantial collapse or unavailability’ of the judicial system in question. It is unlikely that a military commander is in a position to undertake a sophisticated assessment of the competence of relevant authorities; thus, for the purposes of Article 28(a)(ii), the Appeals Chamber considers a competent authority will be that which has the jurisdiction to conduct investigation and prosecution of the criminal matter in question and which is not affected by the ‘total or substantial collapse or unavailability’ of the judicial system.

Relevance of Outcome and Motive

1. 36. It should be noted that the nature of the obligations encapsulated in Article 28(a)(ii) is one of action, not outcome. There is nothing in this provision that requires the crimes in question to be successfully prevented or repressed – indeed, the issue of a commander’s liability may not arise if such an outcome had been achieved. Nor is there an obligation on the commander as to the outcome of any investigation or prosecution relating to crimes, although the referral must be made in good faith that the investigation and/or prosecution will be genuine and not a sham. The commander must do all that is necessary and reasonable to submit a matter to the competent authorities, not ensure any particular result.

2. 37. The Trial Chamber effectively recognised this approach in stating that a commander that has taken all necessary and reasonable measures cannot be held liable ‘even if the crimes nonetheless ultimately occur or the perpetrators go unpunished’.Footnote ³⁵⁹ The Appeals Chamber considers any implication to the contrary in the Trial Chamber’s decision to be erroneous and irrelevant, as is any direct reference to the inadequacy of the results of measures taken by Mr Bemba.Footnote ³⁶⁰ However, it is the Appeals Chamber’s view that such implications and references do not reach the threshold of having a material impact on the outcome of the decision.

3. 38. Furthermore, there is no mention made in Article 28(a) as to the motivations behind a commander’s actions, and the Appeals Chamber does not accept that this should be a relevant consideration in making an assessment as to whether or not a commander failed to meet the requirements of Article 28(a). Beyond the fact that determining motives is an extremely subjective endeavour, it is possible, and in fact highly likely, that a commander will have multiple motivations in following any particular course of action. It is sufficient to note for present purposes that while the Appeals Chamber does not agree with the Trial Chamber’s treatment of motivation as an ‘aggravating’ factor in the Appellant’s case,Footnote ³⁶¹ this approach has not materially affected the outcome and has no impact on the Appeals Chamber’s decision in the present appeal.