Lubanga

As stated above, Mr Lubanga was charged and later convicted by the ICCFootnote ¹⁵ along with his co-perpetrators for agreeing to, and participating in, a common plan to build an army, whose purpose was to establish and maintain control over the Ituri region. Owing to this common plan, children under the age of fifteen were conscripted into the UPC and FPLC between 1 September 2002 and 13 August 2003. The role Lubanga played in the UPC and FPLC, how aware he was of his specific role, his exercise of authority and implementation of UPC/FPLC plans, which included the recruitment of children under the age of fifteen and, most importantly, making them participate in hostilities, led to his charges and subsequent conviction by the ICC. Mr Lubanga was found guilty of the war crime of ‘enlisting and conscription of children under the age of 15 years and using them to participate actively in hostilities’ on 14 March 2012 and was sentenced on 10 July 2012 to fourteen years’ imprisonment. This verdict and sentence was confirmed by the Appeals ChamberFootnote ¹⁶ of the ICC in December 2014.

In their judgment, the Chamber also found that the Office of the Prosecutor (OTP) should not have delegated its investigative responsibilities to intermediaries. This led to the submission of unreliable evidence and consequently contributed to a delay in the proceedings.Footnote ¹⁷ The Lubanga case spanned six years from arrest to conviction, largely due to two successive suspensions of proceedings. The length of ICC proceedings has been criticised due to its impact on the rights of the accused, as well as costs. The OTP did not make potentially exculpatory evidence available to the defence in the first instance.Footnote ¹⁸ Furthermore, in the second instance, the question of impossibility of a fair trial arose when it was found that the defence of the identity of an intermediary (whose veracity had been called into question) was not disclosed by the OTP, in spite of being ordered to do so by the Court.Footnote ¹⁹ The Appeals Chamber reversed both suspensions in October 2010, citing that sanctions should have been made instead.Footnote ²⁰

Ntaganda

In the Ntaganda case, on 15 June 2017, the Appeals Chamber of the ICC handed down the verdict after the defence challenged the jurisdiction of the Court over the war crimes of sexual violence.Footnote ²¹ The scope of the appeal boiled down to whether the Rome Statute’s jurisdictional reach extends to members of the same armed forces for the war crime of rape and sexual slavery listed in Article 8(2)(b) in a non-international armed conflict. In 2017, the Trial Chamber ruled that sexual violence crimes where the victims and perpetrators are members of the same fighting force (intra-party war crimes) can amount to war crimes under the ICC Statute.Footnote ²² That finding was subsequently upheld on appeal.Footnote ²³ On 8 July 2019, Trial Chamber VI of the ICC found Ntaganda guilty of five counts of crimes against humanity and thirteen counts of war crimes.Footnote ²⁴ On 7 November 2019, Mr Ntaganda was sentenced to a total of thirty years’ imprisonment.Footnote ²⁵

On 30 March 2021, the ICC Appeals Chamber confirmed the conviction and the sentence in this case.Footnote ²⁶ On 8 March 2021, Trial Chamber VI delivered its Order on Reparations to victims against Ntaganda.Footnote ²⁷ On 12 September 2022, the Appeals Chamber issued its judgment outlining its reasoning in this case.Footnote ²⁸

Judge Marie Wilmet: Reimagining the ‘Reparations for Child Soldiers’

In 2015, the Appeals Chamber issued its decision regarding the reparations order in the case against Mr Lubanga.Footnote ²⁹ The Appeals Chamber ruled that Mr Lubanga was not liable for reparations for child soldiers who were alleged victims of sexual violence committed by members of the armed forces under his control. Referring to the sentencing decision, the Appeals Chamber noted that the failure of the Trial Chamber to include sexual violence as an aggravating factor meant that it did not ‘establish harm from sexual and gender-based violence resulted from the crime for which Mr Lubanga was convicted’.Footnote ³⁰

At trial, the standard of proof is ‘beyond reasonable doubt’, and at the reparations stage it is a less exacting standard of a ‘balance of probabilities’.Footnote ³¹ Judge Marie Wilmet, in her reimagined decision, reconsiders the trial evidence, applying what she determines is the correct standard of ‘balance of probabilities’ rather than the ‘beyond reasonable doubt’ standard originally applied, and determines that, but for the crimes Mr Lubanga was convicted of, the child soldiers would not have experienced the relevant sexual and gender-based harm. With this conclusion, Wilmet allows those victims to qualify for reparations.

Judge Wilmet reimagines the recruitment of child soldier crimes in the Lubanga judgmentFootnote ³² by using Article 21(3) as an interpretative tool. She demonstrates that, while the evidence presented by witnesses was limited to gender-based violence committed against girl soldiers, it is erroneous that boy soldiers be automatically excluded from reparations, since they did suffer from sexual and gender-based violence as a result of their conscription, enlistment, and use in the armed conflict. Wilmet’s view that ‘anyone – male or female – demonstrating that they suffered from sexual and gender-based violence as a result of the crimes committed by Mr Lubanga is eligible to benefit from reparations’ is, in our opinion, a strong case. We found this to be particularly respectful and inclusive, while not losing sight of the factual particularities of the case, and situating it against the backdrop of the DRC’s socio-economic conditions. What Judge Wilmet does not do is go beyond this brief reference to boy soldiers’ experiences of sexual violence, which she might have chosen to do to better highlight the extent of these experiences. However, girl soldiers, deservingly so in our view, given the extent of the crimes against them, get an in-depth analysis of the harms suffered at the hands of the perpetrators. By doing so, in reimagining the case Judge Wilmet has applied Article 21(3) in a manner that ensures that intersectional and gender-sensitive injuries are at the fore.

As ICC Judge Odio Benito stated in her dissenting Trial Chamber opinion in Lubanga, the Chamber did in fact receive ample evidence of the conditions, including sexual violence, in which boys and girls were recruited, enlisted, and used in the hostilities and reminded us ‘to keep in mind the differential gender effects and damages that these crimes have upon their victims, depending on whether they are boys or girls’.Footnote ³³ Judge Wilmet shows the value in Odio Benito’s feminist lens, and in her reimagining rigorously narrates how the original decision failed to consider women’s unique circumstances and the existence of power relationships. In her rewritten decision, Judge Wilmet discusses how the seemingly gender-neutral war crime of conscription of children to actively participate in an armed conflict differently impact on girl and boy soldiers.

Critiques of the Lubanga case have focused on the constraints surrounding the ‘recognition of harms experienced by girl child soldiers and whether gendered experiences and roles were sufficiently reflected’.Footnote ³⁴ The route the Trial Chamber took in the original decision was viewed as suppressing the complexity of harms suffered by girls and established a hierarchy of harms; some were for substantive offences while others were categorised as being relevant for sentencing or reparations.Footnote ³⁵ In a remarkably succinct paragraph, Judge Wilmet moves away from this approach and highlights the forms of ‘physical or mental injury, emotional suffering, economic loss, or substantial impairment of his or her fundamental rights’ applicable to this case. This exposition of how each of these forms of injury was suffered by the child soldier victims who were conscripted by the UPC also aids in understanding the gendered experiences of these child soldier victims, especially those to whom the original decision was blind.

Finally, Judge Wilmet, when holding that the child soldier victims qualify for reparations, clarifies that sexual and gender-based violence are also criminal acts which should be prosecuted as such. In doing so, Judge Wilmet’s rewritten judgment strongly criticises the former Prosecutor Mr Ocampo’s omission of sexual and gender-based crimes in the original charges.

Judges Priya Gopalan and Olga Jurasz: Reimagining ‘War Crimes within an Armed Group’

In 2017, Trial Chamber VI issued its decision regarding the challenge from the defence to the jurisdiction of the Court in respect to Counts 6 and 9 against Mr Ntaganda.Footnote ³⁶ The Trial Chamber confirmed the charges of rape and sexual slavery of child soldiers as a war crime under Article 8(2)(e)(vi) of the Rome Statute, crimes allegedly committed as intra-party crimes. In this rewritten decision, Judges Priya Gopalan and Olga Jurasz confirm this decision. In doing so, they depart from the methods used by the original Chamber, instead, as explained below, situating their analysis in international humanitarian law (IHL) and treaty interpretation while simultaneously questioning the application of bodies of law created in historical contexts. Judges Gopalan and Jurasz also work to amplify the voices of victims, highlighting how nuances in gender relations influenced the commission of these crimes, particularly against female child soldiers.

More particularly, Gopalan and Jurasz’s rewritten decision overlays a feminist lens onto the factual circumstances of the crimes. To begin with, they engage in feminist judging when ‘asking the woman question’,Footnote ³⁷ pointing out how the apparently gender-neutral war crime of using children to participate actively in hostilities impacts differently on girl soldiers. Another important feature of feminist judging is the fact-telling process – that is, the contextualisation of women’s experiences in the judgments’ narrative. Judges Gopalan and Jurasz recognise the reality of girl soldiers’ lives by pointing out a flaw in the Pre-Trial Chamber’s legal grasp of sexual violence. In the rewritten decision, they bring the previously marginalised experience of girl soldiers to the fore and place the legal issues in a wider social context, taking into account the specificities of women’s lives.Footnote ³⁸ Finally, Judges Gopalan and Jurasz included specific and explicit references to ‘girl soldiers’ in their rewritten judgment, which gives a more realistic reading of the circumstances of the case. Yet, at the same time, one could highlight that these references make boy soldiers who suffered from rape invisible in the narrative of the judgment.

In concrete terms, they make a point of capturing the complexity of real-life experiences of girl soldiers, who are victims of the acts of sexual violence and threats thereof in armed conflicts. In doing so, they are drawing attention to the continuing nature of this crime. They concur with the Pre-Trial Chamber that girl soldiers were not contemporaneously taking part in hostilities during the time of the commission of the sexual violence and were therefore protected under IHL. They refute the Pre-Trial Chamber’s basis for this conclusion, and in particular its focus on the specific and distinct time of the rape. In this context, they opine that the prevalence and frequency of acts of sexual violence experienced by girl soldiers as part of their daily lives and the long-standing impact of rape in both public and private spheres needed to be taken into account.Footnote ³⁹

While paying attention to the continuum of violence experienced by girl soldiers in and outside conflict settings, Judges Gopalan and Jurasz have shown concern for indirect victims such as the relatives of girl soldiers and the transgenerational transmission of trauma. It is telling that, in the Reparations Order in the same case, the ICC Chamber concluded that children who have been born out of rape and sexual slavery may qualify as direct victims, and are therefore entitled to reparations.Footnote ⁴⁰ Judges Gopalan and Jurasz also argue that sexual violence is employed as a tactic of war to assert control over both the civilian population and the members of the same armed group, and that the sexual slavery and the participation in hostilities do not necessarily occur at distinct and different times. They highlight the perpetrators’ powers of ownership that are continuously exercised across conflict and non-conflict settings. Furthermore, in their reimagining, these judges shed light on the socio-cultural tenets of the crime of sexual violence, identifying the need to take into account the patriarchal power structures in which sexual slavery is perpetrated in the DRC.

Judges Gopalan and Jurasz draw upon the Statute’s reference to the ‘established framework of international law’ in order to permit recourse to IHL as a source of interpretation. In this context, they point to the evolutionary nature of the relevant treaties, including the Statute, the Geneva Conventions, and their Additional Protocols, in order to reflect the realities of child soldiering, and the protection of child soldiers, who shift regularly between different roles. Then, using Rome Statute Article 21(3) as an interpretive tool to reach their conclusion, they contextualise the gendered aspects of child soldiering and the use of girls for sexual purposes. They apply and interpret Article 21 in a manner that ‘surfaces’ gendered and intersectional harms. In their rewritten version, they include the experience of girl soldiers in the construction of legal rules and the rules of interpretation in particular.

In their rewritten judgment, Judges Gopalan and Jurasz make the gender issues visible within their feminist retelling of the facts; the complexity and continuity of the sexual violence in armed conflict is clearly underlined. One point that we felt was missing in their judgment was addressing the corrosive political and socio-economic effects of the sexual violence to cover the full spectrum of the temporal analysis of the crime.Footnote ⁴¹

Judge Isabel Maravall-Buckwater: Reimagining ‘Consent’

In 2019, Trial Chamber VI issued the judgment in the case against Bosco Ntaganda. Convicted of eighteen counts of war crimes and crimes against humanity, the volume of sexual violence, especially against women and girls, was a particular feature of this case.Footnote ⁴² In Judge Isabel Maravall-Buckwater’s rewrite, the tension between age-related incapacity and consent is explored. She considers a global interpretation of consent while wanting to acknowledge the sexual agency of individuals, and in doing so uses the voices of victims to recount how the coercive environment within an armed conflict effectively eradicates consent. Through this approach, the reimagined judgment finds that multiple incidents of rape must be confirmed against Mr Ntaganda.

In international criminal law, it is unclear at what age, and in what circumstances, a child is legally capable of consenting to sexual acts. This issue has arisen in multiple cases concerning alleged sexual crimes against female children, including female child soldiers in the Ntaganda case. In her rewritten version of the 2019 Ntaganda trial judgment, Judge Maravall-Buckwater examines the law regarding age-related incapacity to consent. Age-related incapacity constitutes one of the circumstances which render consent immaterial to the crime of rape. As ‘age-related incapacity’ remains undefined in both the Statute and Articles 7(1)(g) and 8(2)(e)(vi) of the Elements of Crime, Maravall-Buckwater considers it appropriate to flesh out details on this point. She holds that, under Article 21(3), the absence of age of consent defined in the law is incompatible with international human rights standards. She has further used Article 21 to incorporate findings/reports of the Convention on the Rights of the Child and the Committee on the Elimination of Discrimination against Women to ascertain what should be considered as the minimum age for consent. Using these international standards, she reaches the conclusion that sixteen is an appropriate age of consent.

In her rewritten judgment, Judge Maravall-Buckwater includes distinctive feminist features. First, her feminist judging provides reasoning with reference to the actual lived experience of individuals and gives social context to issues.Footnote ⁴³ Maravall-Buckwater also provides contextual facts related to the age of the victims of sexual violence, thus enhancing the individual lived experiences of victims. Secondly, her reimagined decision is inclusive in nature. Even though girls are more affected, she does not focus solely on the implications for women; by considering the question of the age of consent, she incorporates the experiences of all victims of sexual violence. On another note, one point that we felt was missing in her reimagined exposition of facts was giving a name to the unnamed girl soldiers who suffer rape.Footnote ⁴⁴ Giving a name is considered important to personify a victim, and to demonstrate empathy with the experience of litigants.

As Cronin has indicated in the New Zealand feminist judgments project, this methodology carves out spaces to ‘see cases in ways that we have been blind to and may be continuing to be blind to. In that sense, the feminist project has larger implications, showing us how to engage with facts in a different way, by letting those facts inform the law, rather than disregarding or ignoring them’.Footnote ⁴⁵

Article 8 War Crimes

1. 1. For the purpose of this Statute, ‘war crimes’ means: …

   1. e. Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: …

   2. (vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in Article 7, paragraph 2 (f), enforced sterilisation, and any other form of sexual violence also constituting a serious violation of Article 3 common to the four Geneva Conventions.

Submissions on the Merits of the Challenge to Jurisdiction over Counts 6 and 9

1. 2. The defence submits that Counts 6 and 9 do not fall within the subject matter jurisdiction of the Court because:Footnote ¹³¹

   1. (i) Article 8(2)(e)(vi) of the Statute is subject to the established requirements of international law;Footnote ¹³²

   2. (ii) according to Article 3 common to the Geneva Conventions of 1949 (Common Article 3), war crimes may not be committed by members of an armed force against fellow members of the same armed force;Footnote ¹³³

   3. (iii) the prosecution has defined the victims of Counts 6 and 9 as being ‘members’ of the same armed force as the perpetrators;Footnote ¹³⁴

   4. (iv) the notion of ‘membership’ of an armed force is not compatible with ‘taking no active part in hostilities’;Footnote ¹³⁵ and

   5. (v) international humanitarian law does not recognise any exception for child soldiers.Footnote ¹³⁶

Chamber’s Analysis of the Court’s Subject Matter Jurisdiction in Respect to Counts 6 and 9

Conclusion

1. 36. Based on the foregoing analysis, the Chamber finds that members of the same armed force are not per se excluded as potential victims of the war crimes of rape and sexual slavery, as listed in Article 8(2)(e)(vi), based on the principles of treaty interpretation, the framework of international law including the jus cogens prohibition on sexual violence and the special protection afforded to children under IHL. Without prejudice to whether such acts have taken place, the Chamber therefore finds that it has jurisdiction over the conduct charged pursuant to Counts 6 and 9.

Judge Priya Gopalan and Judge Olga Jurasz

Sexual Violence against Female Recruits and Soldiers

1. 1. The Union des Patriotes Congolais (UPC)/Forces Patriotiques pour la Liberation du Congo (FPLC) extensively recruited individuals of all ages, from June 2002.Footnote ¹⁸⁸ Female members of the UPC/FPLC were regularly raped and subjected to sexual violence at the camps by male UPC/FPLC soldiers.Footnote ¹⁸⁹ Sexual violence was committed against girls of all ages, including girls under the age of fifteen.Footnote ¹⁹⁰ A number of these female members of the UPC/FPLC became pregnant during their time in the UPC/FPLC.Footnote ¹⁹¹ The Chamber has heard relevant evidence of sexual violence committed against girls over the age of fifteen, however it does not fall within the scope of the charges.Footnote ¹⁹²

2. 2. P-0883 was under fifteen years old at the relevant time.Footnote ¹⁹³ During her time at Bule camp she was raped by ‘many soldiers’.Footnote ¹⁹⁴ She was not able to state how often she was raped, and indicated that ‘whether you were sitting down or sleeping, anyone who wanted to do so could rape you’.Footnote ¹⁹⁵ Soldiers would come and take her and other girls ‘whenever they wanted’, whether they were inside or at the place of work of the soldier, sometimes saying that they would shoot them if they did not agree.Footnote ¹⁹⁶ Later, after having been injured during a battle, P-0883 was sent to Camp Baudouin for treatment, where she found out that she was pregnant, without knowing ‘who was responsible for that pregnancy’.Footnote ¹⁹⁷

3. 3. A girl named Nadège, who was around nine years old at the time, and who was taken to training at Lingo camp, was raped; P-0758 explained that there was pus coming out of Nadège’s vagina and that, as a result, she died.Footnote ¹⁹⁸

4. 4. A girl by the name Mave, who was under fifteen years of age, was raped by many different soldiers on a regular basis. P-0887 testified that many soldiers ‘slept with’ Mave, ‘treated her as a … soldier’s woman’, had sexual relations with her. The witness said she knew this because soldiers were talking about it amongst themselves, and she also spoke to Mave.Footnote ¹⁹⁹ P-0907 testified as well that it was ‘common knowledge’ that Mave had been raped several times by soldiers and she began to suffer from fistula, and that he was present when Kisembo gave a speech to a gathering of soldiers in March 2003, where he told the soldiers that Mave had a fistula and prohibited the further rape of Mave.Footnote ²⁰⁰

The Operations Involving the UPC/FPLC

1. 5. During and in the immediate aftermath of the assault on Mongbwalu, UPC/FPLC soldiers forced women and girls to have sexual intercourse with them. P-0892, thirteen years old at the time, was taken to a house by UPC/FPLC soldiers.Footnote ²⁰¹ Upon arrival, a UPC/FPLC commander named Saidi ordered the soldiers to undress the girl; the soldiers then violently ripped off her skirt and underwear and threw her onto the bed.Footnote ²⁰² Saidi then penetrated the girl with his fingers, saying that she was a minor who had not ‘known a man’, after which he got on top of her and penetrated her vagina with his penis.Footnote ²⁰³ The girl started screaming, after which Saidi put a cloth over her mouth and continued.Footnote ²⁰⁴ After he finished, he said that she now was a ‘woman’, after which one of UPC/FPLC soldiers got on top of the girl and also penetrated her.Footnote ²⁰⁵

2. 6. P-0892 and P-0912 testifiedFootnote ²⁰⁶ that other women and girls were also taken away by UPC/FPLC soldiers and raped. One girl, who was approximately fourteen years old at the time, told her that she was forced to enter a bedroom, asked to lie down, and as she refused, the soldiers started hitting her. Subsequently, two people ‘raped’ her;Footnote ²⁰⁷ P-0912 testified that she overheard that the fourteen-year-old girl had been taken from the same house by soldiers who mentioned that they were taking girls to prepare food at the military camp. This girl later told P-0912 that she had been ‘raped’ and injured.Footnote ²⁰⁸ P-0887 testified that the UPC/FPLC soldiers committed ‘rapes’ and abductions of girls in Mongwalu and referred to one particular instance in which he saw a girl from the neighbourhood being chased and pushed by a UPC/FPLC soldier with a gun, and who then spent a night with the soldier.Footnote ²⁰⁹ P-0888 also testified that he personally saw soldiers and commanders who raped ‘little girls’, although he could not provide their names.Footnote ²¹⁰

3. 7. While in Kobu, UPC/FPLC soldiers detained several women and girls, in some instances for hours, in others over the course of several days; during these periods, UPC/FPLC soldiers raped them and otherwise subjected them to sexual violence on one or more occasion.Footnote ²¹¹ This included an eleven-year-old captured by Commander Simba during a mop-up operation in Kobu whom he brought with him to Bunia where she stayed until the Bunia operation and forced her to sleep with him; according to P-0017, she was forced to have ‘sexual relationships’ with Simba to save her life.Footnote ²¹²

Background to the Conflict

Uganda was a British colony, declaring independence in 1962. The postcolonial period has been dominated by violence and armed conflict, starting in 1964 with violent protests against the consolidation of power by the country’s first prime minister, Milton Obote.Footnote ² In 1971, General Idi Amin Dada carried out a coup. His eight-year regime was characterised by violence, as he tortured and murdered anyone affiliated with the opposition, those perceived as supporting Obote, particularly Acholi and Langi peoples. ‘It is estimated that between 300,000 and 500,000 Ugandans were killed during this period, which earned Amin the nickname “the butcher”.’Footnote ³

After the defeat of Amin’s forces in 1979, Obote eventually returned to power in 1980 and retaliated against Amin’s supporters, starting his own campaign of ‘rape, torture, looting and destruction of property’, during which another 300,000–500,000 people were killed.Footnote ⁴ Obote was once again ousted by the military in July 1985, although it too was then overthrown. In January 1986, Yoweri Museveni seized power and has been President of Uganda ever since, as he abolished all political parties except his own (National Resistance Movement), and continues to perpetuate violence against any opposition.

Uganda has fifty-six ethnic groups, and this has led to opposition, armed insurgencies, and resistance against the government, which continue today. After Museveni took power, conflict began in northern (and parts of eastern) Uganda and continued between government authorities and the Lord’s Resistance Army (LRA), led by Joseph Kony. The LRA has abducted children to use as child soldiers, forced wives, and sexual slaves. It has also perpetrated atrocities against civilians, such as torture and murder.

To date, the only examples of accountability for LRA members are the conviction of Dominic Ongwen at the ICC and one ongoing Ugandan domestic trial against LRA commander Thomas Kwoyelo.Footnote ⁵ It has been reported that some LRA soldiers ‘were integrated into the Ugandan military without investigation into crimes they may have committed in the LRA’, although others remain ‘in the bush’, waging conflict.Footnote ⁶ A temporary ceasefire agreement was signed by LRA negotiators in 2008 (extending previous ceasefire agreements originally signed between November 2006 to 29 February 2008), and then a Demobilisation, Disarmament, and Reintegration (DDR) agreement and an implementation protocol on 29 February 2008. Kony himself did not participate in negotiations, and ultimately the negotiations for a full peace agreement fell apart due to his erratic behaviour.Footnote ⁷ Kony vowed never to sign a full peace agreement until ICC arrest warrants were withdrawn. Despite a high-profile campaign to find him in 2012, his whereabouts remain unknown.Footnote ⁸

The ICC in Uganda

In January 2004, the government of Uganda referred its own situation to the ICC, and investigations were opened in July 2004. The ICC’s focus is on crimes committed in the armed conflict between the LRA and the government authorities. Alleged crimes are war crimes (including murder, cruel treatment of civilians, pillaging, rape, enlistment and use of child soldiers) and crimes against humanity (including murder, enslavement, sexual enslavement, rape, and other inhumane acts).

In 2005, the ICC issued an arrest warrant for LRA leaders Joseph Kony, Vincent Otti, Okot Odhiambo, Raska Lukwiya, and Dominic Ongwen. Kony and Otti remain at large; Lukwiya and Odhiambo are deceased (proceedings terminated). Ongwen surrendered himself to the ICC in January 2015, and, to this day, remains the only defendant to face trial at the ICC over crimes committed in Uganda. No crimes committed by Ugandan government authorities are being investigated by the ICC.

Background to the Ongwen Case

After surrendering himself to the ICC, Ongwen’s trial began in December 2016, closing in March 2020. At the time of his surrender and arrest, Ongwen was the commander of the LRA’s Sinia Brigade, with the rank of brigadier from 2004 onwards. Ongwen’s history is complex. He was himself abducted by the LRA as a child, somewhere between the ages of eight and fourteen, although his exact age at abduction in the late 1980s is difficult to confirm. Ongwen was a particularly brutal leader, and was charged with over seventy counts of war crimes and crimes against humanity.Footnote ⁹ These included crimes of murder, attacking civilians, torture, enslavement, pillaging, other inhumane acts, persecution, destruction of property, rape, sexual slavery, forced pregnancy, outrages upon personal dignity, conscription of children into an armed group, and use of children in hostilities. These charges related to specific attacks on internally displaced persons (civilian) camps, and also to long-term and ongoing crimes (in particular, sexual and gender-based offences).

Ongwen was convicted by the ICC’s Trial Chamber IX on 4 February 2021,Footnote ¹⁰ found guilty of sixty-one crimes (war crimes and crimes against humanity), and sentenced in May 2021 to twenty-five years in prison.Footnote ¹¹ His conviction and sentencing were affirmed in the Appeal Judgment and Sentencing Appeal Judgment of 15 December 2022.Footnote ¹²

Reflecting on the Feminist Judgments

All of the authors have reimagined aspects of the Ongwen Trial Judgment or Sentencing Decision, as the Appeal Judgment was released too late in this project (December 2022). Judges Kirabira, Ringin, and Grey rewrite the sentencing decision in relation to the crime of forced pregnancy; Judge Kyojiika writes a separate sentencing decision to incorporate the aggravating factor of the impact on children who were born as a result of Ongwen’s sexual and gender-based crimes; and Judge Rigney looks at the defence of duress while applying the concept of abolitionism.

Imagining Gender Justice beyond the Existing Rules

One theme that emerges from the rewritten judgments of Judges Kirabira, Ringin, and Grey, and of Kyojiika is the need in sentencing to take into greater account any aggravating circumstances related to the impact of crimes on women and children. Ongwen’s sentence of twenty-five years is something that I have struggled with. The details of the experiences and harms of the girls and women who were victims of the LRA are horrific and long-term: they did not cease when the women managed to escape. Crimes such as forced marriage and forced pregnancy have a lifelong impact. I had hoped that the sentence would be increased on appeal, and was disappointed it was not. I understand that the final sentence given to Ongwen was reduced because of the mitigating factor of his background as a child soldier. However, I found it difficult to balance the length of this sentence given the evidence which detailed the enthusiasm, violence, and cruelty with which Ongwen carried out his crimes. Ongwen may have been abducted as a child, but he was quick to engage with the LRA’s way of life and to rise up through the ranks as he perpetrated atrocities in a way that other child soldiers did not. In addition, as the court noted in its rejection of the duress defence, Ongwen also had opportunities to leave the LRA, but did not do so.

This is perhaps why I find the idea of abolitionism advanced in the reimaged decision by Judge Rigney so challenging. As a scholar, I am open to the idea and can comprehend the arguments such as the need to address the root causes of violence: I agree prevention is better than punishment, if we can avoid the violence. However, when violence does take place, I cannot fathom not having a system of punishment. This is no doubt due to my ingrained education and subsequent work in criminal law. However, it is also due to my extensive empirical research with atrocity survivors. I have interviewed (often mostly women) survivors in Australia, Bangladesh, Bosnia, Cambodia, and Israel. I have delved in depth into survivor testimonies (oral and written) and memoirs, as well as accessing other sources of atrocity evidence such as photographs and film, and explored atrocity sites, memorials, and museums around the world. I have interviewed women who survived rape (including in rape camps) and forced marriage (some of which produced children). I have watched an elderly Holocaust survivor deliver her regular talk about her experience, and still struggle to talk about the loss of her mother over seventy years ago. The lifelong trauma that survivors carry is an incredibly heavy burden that never leaves them. The concept of punishment for crimes has always existed, although it is true that incarceration is historically a relatively new form of punishment, with its roots in racist and capitalist societies.Footnote ²⁵ However, the idea that perpetrators of such horrific, deeply affecting atrocity crimes have the opportunity to ‘rehabilitate’ and live a free life is one I genuinely struggle with, particularly in the context of the crimes that women (and children) have experienced, and in the lifelong trauma and life disruption experienced by victims of genocide and other atrocities.Footnote ²⁶ Thus, I want to see a stronger argument from abolitionists as to how abolitionism fits with atrocity crimes; how it would balance with the desire for justice that victims seek. To me, a gender-just outcome is one that honours the victims’ wishes: what is the justice that they seek, and how can the international criminal justice system deliver that?

It would also be interesting to see how the judges in this collection would implement the amicus curiae contributions that were solicited by the ICC as part of the Ongwen appeal process, if these feminist judgments were at the appeal stage.Footnote ²⁷ Some of the amicus briefs and oral presentations submitted to the court delivered perspectives on issues addressed here, including feminist-influenced arguments: duress, forced pregnancy, forced marriage, and, although not expressly using the word ‘abolitionism’, some relating to arguments about the context of violence in which Ongwen existed.Footnote ²⁸ How would the judges in this collection have considered these amicus submissions? Would these submissions have contributed to or even strengthened the judges’ findings? An interesting future project, perhaps.

The three Ongwen judgments in this book have two starkly competing feminist perspectives: one that works from inside the legal system and seeks to take the perspectives and experiences of children into account; and one that seeks to disrupt the legal system and urges it to take the context of atrocity violence into account to create new solutions. Yet all the judgments are grounded in a human rights perspective and language, always seeking to enhance and uphold the human rights of victims. Hence, this Uganda/Ongwen section of this book of feminist judgments is a microcosm of feminism, which comes in many forms and with many theories, although ultimately seeking equality, participation, non-violence, peace, and justice. Which, after all, is also what international criminal justice systems should deliver.

The Defence of Duress

1. 7. Article 31 of the Rome Statute permits an accused a defence against their criminal responsibility for their conduct in situations where there was a ‘threat of imminent death or of continuing or imminent serious bodily harm against that person or another person’.Footnote ³⁵

2. 8. I agree with the majority’s statements on the elements of the defence of duress. As they have set out, duress has three elements.Footnote ³⁶ The first is the existence of a particular type of threat: there is a requirement that the conduct which is alleged to constitute the crime must have been caused by duress which resulted from a threat of imminent death or of continuing or imminent serious bodily harm, against the accused or another person.Footnote ³⁷ The threat may be made by other persons, or may be constituted by other circumstances beyond the accused’s control, but it is to be assessed at the time of the conduct in question which is alleged to constitute the crime. The requirement of imminence relates to the nature of the threatened harm (rather than the threat itself).Footnote ³⁸ Hence, the threatened harm must be to be killed immediately, or to have serious bodily harm inflicted immediately or in an ongoing way.Footnote ³⁹ Duress is not an available defence if this requirement of immediacy is not met; and an elevated probability of harm or an abstract danger will not be sufficient.Footnote ⁴⁰

3. 9. The second element of the defence of duress is that the accused acted necessarily and reasonably to avoid the threat.Footnote ⁴¹ They are not required to take all conceivable action to avoid the threat. A determination of what ‘necessarily and reasonably’ would mean under the circumstances is a decision for the Trial Chamber, and should be assessed in relation to the totality of the circumstances in which the accused found themselves. The third element is that the person does not intend to cause a greater harm than the one sought to be avoided. This is a subjective element and relates to the intention of the individual, not whether or not they actually avoided the greater harm.Footnote ⁴²

4. 10. The defence argues that Ongwen was ‘under a continuing threat of imminent death and serious bodily harm from [Joseph] Kony and his controlling, military apparatus’.Footnote ⁴³ They contend that Kony maintained control over the LRA through strict rules and severe punishment for non-compliance; supervision of commanders; and assertion of spiritual powers.Footnote ⁴⁴ In total, the defence have led substantial evidence about the environment of the LRA and the horrors to which LRA members were subjected.Footnote ⁴⁵

5. 11. The defence have also led significant evidence about Ongwen’s mental state, and defence expert evidence suggested that ‘the coercive and violent LRA, controlled by Kony (and the Spirits), with its “do or die” rules and regulations, disrupted [Ongwen’s] development of any moral values and of the Acholi culture, leaving Mr Ongwen with no free will. Every activity that Mr Ongwen participated in while in the LRA was under duress’.Footnote ⁴⁶ The defence argues that Mr Ongwen’s mental state ‘destroyed his capacity to “act reasonably and necessarily” in his situation to avoid the LRA’s threats, and made it not possible for him to formulate any intent not to cause a greater harm’.Footnote ⁴⁷

6. 12. The prosecution argues that the defence of duress is not applicable in this case. While the prosecution acknowledges that the LRA ‘sometimes inflicted severe punishment on its members for breaking the armed group’s rules, the Chamber has heard no evidence that Mr Ongwen’s conduct was caused by a threat of imminent death or imminent or continuing serious bodily harm against him or another person’.Footnote ⁴⁸

7. 13. In this case, the majority have concluded that the accused was not ‘subjected to a threat of imminent death or imminent or continuing serious bodily harm to himself or another person at the time of his conduct underlying the charged crimes’.Footnote ⁴⁹ In particular, they focus on evidence that during the period of the charges, Mr Ongwen did not face any prospective punishment by death or serious bodily harm when he disobeyed orders. Moreover, although Mr Ongwen had a realistic possibility of leaving the LRA, he chose not to do so and instead ascended through the ranks and attained greater power. Indeed, Mr Ongwen occasionally contested orders, and frequently acted independently.Footnote ⁵⁰ This evidence is compelling, and I agree with the view of the majority that there has not been evidence brought to satisfy the particular elements of the defence of duress, particularly the requirement of immediate threat. In this case, then, the defence of duress has not been established and cannot excuse Mr Ongwen’s conduct.

8. 14. Nonetheless, due to the contestation of the defence of duress, significant evidence was brought which cast light on the conditions under which Mr Ongwen operated. Indeed, while duress has not been made out in this case, the defence itself – and the evidence that has been adduced by virtue of raising the defence – invites consideration of particular issues of morality, responsibility, power, and violence. Duress is fundamentally concerned with choice, and the structures that constrain or motivate that choice. What decision did the accused make about their actions, and why was that decision chosen? What drives the accused’s agency? What structural conditions influenced their actions?

9. 15. In raising such questions, the defence of duress allows us to consider the structure of international criminal law, its conditions of possibility, and whether it can address the interconnectedness between personal and political violence. In so doing, we are invited to consider whether there are other alternatives to this criminal justice system. These are the issues I want to address in my remaining comments.

International Criminal Law’s Structural Features and Conditions

1. 16. As a system of law, international criminal law has emerged relatively recently: the 1990s saw a huge momentum towards building institutions, substantive laws, and procedural laws. It is no coincidence that the growth of international criminal law occurred at the same time as post-Cold War expansion of neoliberalism, with its attendant greater recourse to criminal law.Footnote ⁵¹ Neoliberalism ‘often called for a strong punitive state’, and ‘criminal law played an important role in economic restructuring and rule of law projects throughout the world’.Footnote ⁵² Moreover, international criminal law’s focus on individual responsibility mirrors the individualist ideologies of neoliberalism.Footnote ⁵³

2. 17. Many argue that international criminal law is vulnerable: it is reliant on states for funding and logistics; it has no independent police force; and its jurisdiction is limited in many ways. Yet the suggestion that international criminal law is inherently vulnerable obscures the fact that it has some significant structural strengths. In particular, it is the powerful states and individuals that can either enforce or ignore international criminal law. Just as in domestic criminal systems, some are more criminalised than others. Far from being a flaw, the ways in which some powerful parties can flaunt international criminal law while others are captured by it is part of the design of the system.

3. 18. There are various ways in which international criminal law structures criminality. Its relationships to global capitalism, race, and imperialism all determine who and what is criminalised.Footnote ⁵⁴ International criminal law’s focus on particular core crimes disregards other types of harm.Footnote ⁵⁵ Its jurisdictional limitations mean that certain states and people are often concentrated on, and others escape examination. All of this means that race, nationality, class, and gender are powerful determinants of who will be brought before the Court – even more so than commission of a crime.Footnote ⁵⁶

4. 19. International criminal law is galvanised by two powerful narratives, or aims of the system of law: ‘ending impunity’ and providing ‘justice to victims’.Footnote ⁵⁷ The first of these, ‘ending impunity’, is undertaken through criminal trials of individuals, and holding individuals criminally responsible for collective wrongdoing and for crimes perpetrated by others (through extended modes of liability and superior responsibility).Footnote ⁵⁸ But in assigning individual criminal responsibility to particular people for acts that are often collective, international criminal trials ‘exonerate[e] … those larger (political, economic, even legal) structures within which the conditions for individual criminality have been created’.Footnote ⁵⁹ Those structures, and the conditions they create – including ‘poverty, discrimination, marginalization, and social exclusion’ – are ‘lost from sight’ in international criminal legal discourse.Footnote ⁶⁰ Thus, international criminal trials often decontextualise the actions of the accused, and refuse to examine these actions within the conditions that give rise to them.

5. 20. A further structural feature of international criminal law is how this legal system addresses victimhood and perpetration. As mentioned, ‘justice for victims’ is a pre-eminent aim of international criminal law. Victims are seen as the ones in whose name criminal justice is dispensed. Yet they are also frequently ‘feminized, infantilized and racialized’Footnote ⁶¹ in the process, and are made into a ‘deity-like abstraction’ rather than a real person with their own needs and opinions.Footnote ⁶² Perpetrators (and alleged perpetrators) are similarly reduced. Ultimately, victimhood and perpetration are separated in international criminal law – presented as a dichotomy.Footnote ⁶³

6. 21. Alongside this general dichotomy of victim and perpetrator, there is a more particular ‘legal fiction’ that paints child soldiers as ‘faultless passive victim(s)’.Footnote ⁶⁴ The reality is ‘not so simple’, with child soldiers often exercising agency and sometimes perpetrating crimes.Footnote ⁶⁵ Indeed, Ongwen has become a personification of these issues: a small boy, vulnerable and victimised, who grew up to be a man accused of committing heinous crimes; accused himself of victimising others.

7. 22. To summarise, we see that international criminal law, as a system of law, has particular structural features. These features are a consequence of its ideological underpinnings, which are linked to neoliberalism, as well as the relationships between international criminal law and race, global capital, and imperialism. The structural features include substantive and procedural laws that criminalise some and exonerate others. As a result, some wars (or ‘situations’), and therefore some individuals, are brought into the realm of ‘international criminal justice’ while others are not. Even further, within these situations some are labelled as criminals and others are labelled as victims – and these binaries have an additional gloss when we consider the example of child soldiers, as in the current case. I now want to consider these structural features of international criminal law against the arguments of abolitionist movements.

Abolition

1. 23. Abolition, as it refers to more modern understandings of the carceral system, is defined ‘as a tradition, a philosophy, and a theory of change, [which] moves away from a myopic focus on the distinct institution of the prison toward a more expansive vision of the social, political, and economic processes that defined the context within which imprisonment came to be viewed as the legitimate hand of justice’.Footnote ⁶⁶ Abolition ultimately aims to eliminate imprisonment, policing, and surveillance, and to create ‘lasting alternatives to punishment and imprisonment’.Footnote ⁶⁷

2. 24. Abolitionist movements are guided by a philosophy which typically holds three central tenets:Footnote ⁶⁸

   1. 1. That the modern carceral punishment system has its origins in ‘slavery and the racial capitalist regime it relied on and sustained’;

   2. 2. That the carceral system ‘functions to oppress black people and other politically marginalized groups in order to maintain a racial capitalist regime’; and

   3. 3. That ‘we can imagine and build a more humane and democratic society that no longer relies on caging people to meet human needs and solve social problems’.Footnote ⁶⁹

3. 25. Thus, abolitionist philosophy and movements aim to understand what is (in particular, the links between carceral systems and racial capitalism), and envisage what might be (imagining and building a better approach to complex social problems).

4. 26. Abolition has been grounded in feminism, particularly the work of Black feminists and feminists that oppose racial capitalism. Indeed, it has been said that ‘abolition is unimaginable without feminism … feminism is unimaginable without abolition, and … this dialogue is imperative’.Footnote ⁷⁰

5. 27. In recent years, we have seen an uprising in domestic police and prison abolition movements in domestic jurisdictions. Increasingly, people are coming to better understand the causes of deviance and the links between capitalism, race, imperialism, and criminal ‘justice’. While not seeking to detract from the experience of racialised carceral systems experienced in the United States of America, we can, I would argue, apply abolitionist theory and praxis to international criminal law. We can do so as follows.

6. 28. First, we can understand the origins of international criminal law. As I have outlined above, these are linked to neoliberalism, capitalism, racism, and imperialism. Second, we can examine how these origins work to structure criminality. As I have also outlined above, international criminal law, by design, criminalises some – disproportionately those who are Black, and from the Global South – more than others. This, together with its steadfast refusal to engage with the causes of criminality, has meant that international criminal law has not shown itself to be capable of addressing the causes of mass violence.

7. 29. This brings us to our final consideration: can we ‘imagine and build a more humane (international) society that no longer relies on caging people to meet human needs and solve social problems’?Footnote ⁷¹ I believe we can, and I will return to this point in the conclusions. However, I first want to draw out why the defence of duress is particularly helpful for building an abolitionist movement.

The Defence of Duress and an Abolitionist Movement for International Criminal Law?

1. 30. The defence of duress provides an important opportunity to understand several issues that are at the heart of abolitionist movements. These are (1) the factors that led to criminality; (2) the complexity of being both victim and perpetrator; and, relatedly, (3) the interconnectedness between personal and political violence, or between individual and state violence.

2. 31. First, the defence of duress, as we have already seen, allows a conversation about why an individual acted in a particular way. What caused this person’s criminality? In Mr Ongwen’s case, the defence has emphasised the abduction of young Dominic and the crimes suffered by him, as well as the LRA’s practices of harm and threat against its own soldiers. This may not be sufficient to excuse the criminal conduct alleged; the facts of the case may not satisfy the requirements of duress, particularly the need for ‘imminence’ of the threat.Footnote ⁷² Nonetheless, raising the defence of duress allows us to situate the accused and the reasons for his conduct. We can, and should, also look more broadly – to the political, legal, and economic causes of the situation of conflict (which includes considering who is benefiting financially from the war – arms manufacturers, particular individuals, and certain states and companies).

3. 32. This broader examination is also at the heart of the abolitionist movement. Abolitionists ‘address the root causes of harm by investing in people’s basic needs and addressing the causes of interpersonal violence’.Footnote ⁷³ In seeking to understand what causes criminality – those political, legal, and economic systems that lead to poverty, racism, and systems that criminalise some more than others – abolition also attempts to build solutions to those root causes. It is ‘about presence, not absence. It’s about building life-affirming initiatives’.Footnote ⁷⁴

4. 33. Secondly, the defence of duress permits us a more nuanced and sophisticated understanding of victimhood and perpetration. The current case of Mr Ongwen has particularly highlighted the challenges for international criminal law accounting for ‘victims who victimise’,Footnote ⁷⁵ or individuals who are both victim and perpetrator. As we have seen, international criminal law is structurally inept at understanding such victim-perpetrators. But when an individual raises a defence of duress, we often hear evidence about their own victimhood. While they may even admit to the commission of the crime, they also explain how they were victims of the actions of another person and, perhaps, of particular systems and structures.Footnote ⁷⁶ In Ongwen’s case, and in other cases where duress is raised, perpetration and victimhood are entangled.

5. 34. This interconnection between victimhood and perpetration might be difficult for international criminal law to accept, but in contrast, an abolitionist movement is concerned with contradictions ‘which are often the spark for change’.Footnote ⁷⁷ Contradictions – such as ‘perpetrator’ and ‘victim’ – are instead held onto as ‘both/and’.Footnote ⁷⁸ This allows the abolitionist movement to recognise ‘the relationality of state and individual violence and thus frame our resistance accordingly: supporting survivors and holding perpetrators accountable … sometimes messy and risky, these collective practices of creativity and reflection shape new visions of safety’.Footnote ⁷⁹

6. 35. This brings us to the third area in which duress permits an understanding, which is also important to abolitionist movements – this interconnectivity between personal and political violences. An easy – yet false – critique of abolitionist movements would be that victims are forgotten; not provided with ‘justice’. If we do not have a carceral system designed for retribution, what will happen to the victims?

7. 36. It is worth recalling the crimes and victims in this particular case. Mr Ongwen is charged with committing acts of murder, attempted murder, torture, enslavement, outrages upon personal dignity, pillaging, destruction of property, persecution; the recruitment of child soldiers; and sexual and gender-based crimes including forced marriage, torture, rape, sexual slavery, enslavement, forced pregnancy, and outrages upon personal dignity. These acts and crimes all have victims.

8. 37. It is not that abolitionists just want the end of the carceral system: they want the end of the need for the carceral system. Abolition feminists remember that ‘to render prisons and policing obsolete we must also build movements demanding that society be reshaped with the goal of eliminating gender and sexual violence and their enabling of racist and heteropatriarchal structures’.Footnote ⁸⁰ Moreover, abolition feminists point out that ‘while it is critical to hold those who use violence accountable, advocating for greater involvement by the criminal legal system is counterproductive at best, and can actually further endanger some survivors’.Footnote ⁸¹

9. 38. Indeed, we see some of these problems in international criminal law. While it is a system that is galvanised by victims, there are significant issues with how victims are treated in international criminal law. At this Court, victim participation in trials has meant that some victims of crimes are granted participation status while other victims are not. This has the effect of creating a hierarchy of victimisation, and narrowing types of victimhood.Footnote ⁸² This system, then, can be challenging for victims.

10. 39. In contrast, abolition practices ask, ‘what does it mean … to fight violence against women while simultaneously addressing the structural violence faced by the larger community?’Footnote ⁸³ Or, put another way, ‘how to acknowledge the structural character of gender violence alongside its intersections with violences generated by racism and capitalism’.Footnote ⁸⁴ Thus, abolition of carceral justice attempts to prioritise victims by building a world where crimes do not occur in the first place.

Imagining a Different World

1. 40. What would it have meant if Dominic Savio was born in a safe place? What if he was able to walk by the road without being kidnapped? What if he – and all other children in his community – had been able to go to school, had full bellies, safe beds, and high-quality universal healthcare? What if all children had been free from fear of violence, including sexual and gender-based violence?

2. 41. It is my belief that we need to turn our attention from the ‘ending impunity’ rhetoric of international criminal law (which is already partial and skewed towards impunity for some and criminalisation of others), to instead focus on ending atrocities and the conditions that give rise to them.

3. 42. Abolitionists work towards ‘community-based transformative justice responses that address the social causes of violence and hold people accountable without exposing them to police violence and state incarceration’.Footnote ⁸⁵ These practices might include community-building, properly funded education, robust healthcare, and rehabilitation. In a similar way, international criminal law needs to consider more deeply what a world could look like without any need for international criminal law, and what strategies might be used to achieve this alternative world.

4. 43. In this case, I concur with the majority, and find that the defence of duress is not satisfied. I feel some regret at this conclusion, because it is likely – subject to the separate sentencing judgment – that Dominic Ongwen will be imprisoned. However, we remain operating within the penal system of international criminal law, with its defences set out under the Rome Statute. In the case of duress, the defence is strictly defined, and limited to instances where the elements are satisfied. In this case, it has not been met.

5. 44. But nevertheless, at a more abstract level, duress permits us to understand the limitations of international criminal law, its structural features, and what else might be possible. I hope we can work together to envisage this alternative reality where we have a safer, better, world for all – and then to form a movement to undertake the work to bring this world into being.

Judge Sophie Rigney

Forced Pregnancy

Sentencing Determination for Forced Pregnancy

1. 56. As the above analysis shows, forced pregnancy is a crime of the most serious gravity. It violates a person’s dignity, their body, and their reproductive autonomy. The impacts can reverberate through every facet of the victim’s life.

2. 57. In addition, the crime can result in a child, which even if welcomed, can place a heavy economic burden and caring responsibility on the victim. Forced pregnancy, therefore, resonates well after the pregnancy itself. It is a crime whose effects can endure for the duration of the victim’s life, as well as there being intergenerational impacts felt by the child. [Editors’ note: see below, Winfred Naigaga Kyobiika’s reimagined judgment in this collection on the impact on children born of sexual violence (Chapter 9.4).]

3. 58. Taking into account the damage caused by the crime, the direct role of Mr Ongwen, and the other aggravating factors noted above, and in keeping with previous sentences by this Court for analogous crimes,Footnote ¹⁸⁷ it is appropriate to sentence Mr Ongwen to life imprisonment for the crime against humanity of forced pregnancy (Count 58) and the war crime of forced pregnancy (Count 59), to be served concurrently with his sentence for other crimes.

4. 59. However, this sentence is to be reduced to thirty years taking into account the impact of Mr Ongwen’s childhood experiences in the LRA on his moral and psychological development (see next section).

Prosecutor v. Omar Hassan Ahmad Al Bashir

In its 2009 Decision on the Prosecution’s Application for a Warrant of Arrest (First Decision), Pre-Trial Chamber I determined there were reasonable grounds to believe that around April 2003, along with other top political and military leaders of the Sudanese government, Mr Al Bashir – then President of the Republic of Sudan and the commander-in-chief of the Sudanese armed forces – established a common plan to carry out a counter-insurgency campaign against armed groups opposing the government, and that a core component of the campaign was the unlawful attack on that part of the civilian population of Darfur belonging largely to the Fur, Masalit, and Zaghawa groups; and he used the ‘apparatus’ of the Sudanese state to direct hundreds of attacks against the Fur, Masalit, and Zaghawa civilian population taking no direct part in hostilities.Footnote ¹⁷ In issuing the warrant, the Chamber held that there were reasonable grounds to believe that Mr Al Bashir was criminally responsible for the war crimes of attacking civilians and pillage, arising from various attacks taking place between August 2003 and May 2008 on specified localities,Footnote ¹⁸ and the crimes against humanity of murder, extermination, forcible transfer, and rape arising from attacks on named localities in West and South Darfur in various periods between August/September 2003 and May 2008.

In its second decision regarding the warrant of arrest (Second Decision), issued on 12 July 2010, the Pre-Trial Chamber held that there were reasonable grounds to believe that Mr Al Bashir was criminally responsible for the commission of the three counts of genocide against the Fur, Masalit, and Zaghawa ethnic groups.Footnote ¹⁹ Following his overthrow in the 2019 coup d’état, Al Bashir was arrested by local authorities and is currently in Sudanese custody. As he has not been transferred to the seat of the Court, his case remains at the pre-trial stage.

Ali Muhammad Ali Abd-Al-Rahman (Ali Kushayb)

Mr Abd-Al-Rahman is alleged to be a senior leader in the Janjaweed militia in Wadi Salih area of West Darfur, a member of the Popular Defence Forces, and commander of thousands of militia/Janjaweed from August 2003 to March 2004.Footnote ²⁰ On 27 April 2007, Pre-Trial Chamber I granted the Prosecutor’s application under Article 58(7) of the StatuteFootnote ²¹ and decidedFootnote ²² to issue a warrant of arrest against Mr Abd-Al-Rahman for crimes against humanity and war crimes allegedly committed in the localities of Kodoom, Bindisi, Mukjar, Arawala, and their surrounding areas in Darfur, Sudan, between August 2003 and March 2004.Footnote ²³ On 16 January 2018, Pre-Trial Chamber II granted the Prosecutor’s application to amend the first warrant,Footnote ²⁴ issuing a second warrant of arrest for crimes against humanity and war crimes allegedly committed in the locality of Deleig and surrounding areas in Darfur, Sudan, on or about 5–7 March 2004.Footnote ²⁵

Mr Abd-Al-Rahman is charged with thirty-one counts of war crimes and crimes against humanity – including murder, rape, forcible transfer, torture, persecution, pillage, cruel treatment, intentionally directing attacks against the civilian population, destruction of property, and outrages upon personal dignity – committed in 2003 and 2004 in four villages in West Darfur. He is charged with directing attacks, and also mobilising, recruiting, arming, and providing supplies to Janjaweed militia under his command.

On 9 June 2020, Mr Abd-Al-Rahman voluntarily surrendered himself in the Central African Republic and was transferred into ICC custody. In June 2020, as ordered by the Chamber,Footnote ²⁶ Mr Abd-Al-Rahman made his first appearance before the single judge,Footnote ²⁷ during which his case was severed from his co-defendant Mr Harun’s case. Pre-Trial Chamber II confirmed all thirty-one charges on 9 July 2021. Mr Abd-Al-Rahman’s trial commenced on 5 April 2022 and is ongoing at the time of writing.

Prosecutor v. Al Bashir, Second Decision on the Prosecutor’s Application for a Warrant of Arrest

Judge Akila Radhakrishnan and Judge Grant Shubin deliver their reimagining of the ICC Pre-Trial Chamber’s Second Decision on the Prosecutor’s Application for a Warrant of Arrest, issued in 2010 against Sudan’s then president in respect of his responsibility for the alleged genocide in Darfur against the Fur, Masalit, and Zaghawa peoples.

While the Pre-Trial Chamber’s Second Decision explored the evidence adduced by the prosecution in support of the material elements of each of the alleged counts of genocide being met, their examination’s approach to the victims was gender-blind and ageless, often referring to victims as ‘people’ or ‘civilians’Footnote ²⁸ – apart from sexual violence, where only women were highlighted as victims.Footnote ²⁹ The original Second Decision, in the absence of an intersectional approach, did not grapple with how the gendered and age-disaggregated commission of genocide, by design, was more likely to specifically target and/or impact on victims who are routinely less visible in documentation and jurisprudence, such as children and women, as well as deepening the annihilative impact of the crime.

Judges Radhakrishnan and Shubin’s reimagined decision takes as its starting point the Pre-Trial Chamber’s exploration of the specific material elements of each of the three counts of genocide. It illuminates how gendered understandings are woven into the Sudanese government’s planning and commission of coordinated acts that make up the continuum of genocidal violence, and how through these gendered annihilative acts the perpetrators maximised the crime’s destructive impact on the Fur, Masalit, and Zaghawa ethnic groups.

Alighting first on the count of genocide by killing, the judges delve into the gendered manner of the killings, emphasising that civilians were targeted in specific ways by reason not only of their ethnicity but also of their perceived gender. The Chamber makes the significant choice – given the paucity of information as to the gender and age of the victims within the evidence presented by the prosecution – to include testimony from the UN Darfur Commission report, which charts the targeted killing of men and boys from the three ethnic groups, including the seeking out and killing of young boys being hidden by their families.Footnote ³⁰ Radhakrishnan and Shubin also highlight how the crime of murder was committed in different ways against victims of different genders, a facet that is obscured in the original decision’s use of the gender-blind term ‘civilians’. In one example, the judges, in their reimagining, direct focus to the gendered nature of killing, juxtapositioning the killings of men and boys through gunshot at the onset of an attack, and an attack where the women suffered far slower deaths, having been abducted, transferred to a military garrison, paraded naked, and raped continuously for several days, in the course of which three were killed.Footnote ³¹

In the second count of genocide by causing serious bodily and mental harm, Judges Radhakrishnan and Shubin explore the legacy of the International Criminal Tribunal for Rwanda (ICTR) Akayesu case, in discussing rape and sexual violence as constitutive acts of genocide. While both the prosecution and Chamber refer to the rape of ‘thousands of women’, the reimagined decision renders visible the experience of girls, highlighting sections of the prosecution’s application stating that ‘girls as young as five … were raped’.Footnote ³² Also discussed are the particular gender-specific impact on women and girls in society, with the gendered impact layered atop the harm done as a result of pre-existing structural inequalities and practices. In Darfur, that includes not only the physical and psychological damage, but particularly physical damage – including increased risk of fistula – in those who had previously been subjected to female genital mutilation.

As well as exploring the gendering of the third count of genocide, Judges Radhakrishnan and Shubin centre the gendered dimensions of evidencing genocidal intent, unexplored in the original decision. They note that judicial and non-judicial determinations of genocide have largely focused on intent to physically destroy as evidenced through mass killing. They posit that, considering the gendered underpinnings of the acts in question, equally relevant is the intent to biologically destroy, which aims at the target group’s regenerative capacity and its ability to ensure long-term survival – and which has specific consequences for women and girls, who are perceived to be the main reproductive agents of the group, in the gendered role of bearers of life.Footnote ³³

While limited by the gender-blindness of the underpinning evidence, Judges Radhakrishnan and Shubin’s reimagined decision underscores that female and male members of targeted groups, by the perpetrators’ own design, experience genocide in distinct ways by reason of their gender. In particular, they successfully illuminate how genocidal violence directed at women and girls is fed by existing misogynistic attitudes in society, and the traumatic impacts are magnified by the financial, social, and cultural inequalities to which women and girls are subjected.

Prosecutor v. Al Bashir, Judgment in the Jordan Referral of the Al Bashir Appeal

Judges Saumya Uma and Ramya Jawahar Kudekallu have handed down their reimagining of the Appeals Chamber’s May 2019 judgment in the Jordan referral of the Al Bashir appeal.Footnote ³⁴

The original judgment addressed the question about the extent to which states are legally obligated to cooperate with the Court, in which the Appeals Chamber decided that Jordan, as a state party to the Rome Statute, had an obligation to arrest and surrender Mr Al Bashir, despite Sudan not being a state party to the Statute and despite Mr Al Bashir then holding the post of President of Sudan. The reimagined judgment focuses on the question of whether Jordan had failed to comply with its Rome Statute obligations, examining the issue of state cooperation and accountability from a feminist analytical perspective.

The original and the reimagined judgments share commonalities. Both confirm the Pre-Trial Chamber’s decision, finding that Jordan had failed to comply with its obligations under the Statute by not executing the Court’s request for the arrest of Mr Al Bashir and his surrender to the Court while he was on Jordanian territory on 29 March 2017.Footnote ³⁵ In the underlying reasoning, both judgments concur that there is no customary law recognising head-of-state immunity before an international court, and such immunity cannot be claimed under Article 27(2) of the Rome Statute.Footnote ³⁶

Further, both judgments agree that parties to the Rome Statute are under an obligation to cooperate fully with the Court in accordance with the Statute, and that this obligation must be ‘understood in the context of the Statute as a whole and bearing in mind its object and purpose’.Footnote ³⁷ In this, the original judgment notes that the ICC was established to exercise jurisdiction ‘over persons for the most serious crimes of international concern’ and its state parties express their determination to ‘put an end to impunity for the perpetrators of these crimes’.Footnote ³⁸ The original judgment states: ‘The obligation to cooperate with the Court reinforces the obligation erga omnes to prevent, investigate and punish crimes that shock the conscience of humanity, including in particular those under the jurisdiction of the Court and it is this erga omnes character that makes the obligation of States Parties to cooperate with the Court so fundamental.’Footnote ³⁹

Nevertheless, Judges Uma and Kudekallu’s reimagined judgment explores, with greater sensitivity and nuance, both how state cooperation impacts on victim communities, and specifically victims from marginalised communities including women, girls, and those belonging to sexual orientation and gender identity (SOGI) minorities. With great clarity, they emphasise how Jordan’s breach of its obligation to cooperate with the Court in failing to arrest and surrender Mr Al Bashir also fails the victims of the alleged crimes, which include multiple war crimes and crimes against humanity as well as the crime of genocide – ‘an undesirable outcome that is diametrically opposed to the objectives for which this Court was established’.Footnote ⁴⁰

In further contrast to the original judgment, Judges Uma and Kudekallu’s reimagining explores the intrinsic interconnections between state cooperation with the ICC in arresting and surrendering a suspect to the Court, and ending impunity for ICC crimes, especially crimes of sexual and gender-based violence. As they note, a failure of states to cooperate opens up ‘chasms in access to justice for victims’, while assisting the accused to take refuge in other jurisdictions. The reimagined judgment further observes that Jordan has also fallen foul of its duty to discharge its state obligations under other conventions that it has ratified, including (but not limited to) the Genocide Convention and/or Torture Convention.

In contrast with the original judgment, Judges Uma and Kudekallu’s feminist reimagining confronts the international legal community with the reality that a failure of a state party, here Jordan, to live up to its obligations to arrest and surrender Mr Al Bashir has profound implications for victims’ access to justice.

Prosecutor v. Abd-Al-Rahman, Decision on the Confirmation of Charges

In this rewritten decision, Judges Lisa Davis and Marina Kumskova consider whether the Chamber had the evidence before it to request, under Article 61(7) of the Rome Statute, the Prosecutor to present evidence on the crime of gender persecution.

In the original Rahman Confirmation of Charges Decision, the Chamber found that the contextual elements of war crimes and crimes against humanity had been proven to the requisite standard.Footnote ⁴¹ Following an examination of the evidence put forward by the prosecution, and taking into account the submissions by the defence, Office for the Public Counsel for Victims, and legal representatives of victims, the Chamber confirmed the multiple counts of war crimes and crimes against humanity, including persecution as a crime against humanity.Footnote ⁴²

The charge of persecution concerned targeted attacks on persons in Kodoom, Bindi, and surrounding areas, the population of which were predominantly Fur and who were perceived as belonging to, or being associated with, or supporting the rebel armed groups. The prosecution asserted that Mr Abd-Al-Rahman targeted these persons on political and ethnic grounds, severely depriving them of fundamental rights, including the rights to life, bodily integrity, private property, freedom of movement and residence, and not to be subjected to rape, torture, or cruel, inhumane, or degrading treatment.

In their reimagined decision on confirmation of charges in the Abd-Al-Rahman case, Judges Davis and Kumskova engage with the question of whether to confirm the charge of persecution on the ground of gender, under Article 7(1)(h) of the Statute. More specifically, they look at the question of whether, drawing from the facts as presented in the prosecution’s submissions, the prosecution established substantial grounds to believe that Mr Abd-Al-Rahman committed the crime of gender persecution in Kodoom, Bindisi, and surrounding areas between 15 and 16 August 2003; in Mukjar and surrounding areas between the end of February 2004 and the beginning of March 2004; and in Deleig and surrounding areas between 5 and 7 March 2004.

Judges Davis and Kumskova’s judgment explores the gendered dimensions of the attacks on persons from the Fur population, illuminating how the attacks were planned and committed against women and men, girls and boys in specific ways because of the gender roles they were perceived to inhabit. For example, the reimagined decision explores the targeted killing and torture of Fur men and older boys in the attacks on Mukjar and Deleig and highlights that the perpetrators were driven by the view of men as fighters and boys as revenge-seekers, based on entrenched perceptions of the biological and sociological roles of men and boys in that society. Analysing the evidence contained in the prosecution submissions with regard to the rape of Fur women and girls, the reimagined judgment explores the intersection of the perceived marginalised identities of the victims as black women, highlighting the perpetrator’s use of forced nudity and often public rapes, as well as the import of the derogatory epithets by which the perpetrators referred to the women, notably as slaves.

The reimagined judgment delves deeper into the gendered design and impact of the crimes. The judges’ analysis illuminates how the attacks on Fur men and boys draws from the understanding of males as protectors of the group, while attacks on women and girls pay heed to their role of holders of community honour – often defined in terms of socially enforced control over their sexuality. The attacks on Fur women, girls, men, and boys therefore not only serve to imprint the dominance of the perpetrator group, but also to break the will and destroy the social bonds within the Fur community.

The facts in the case render visible that targeting of the Fur lay at the intersection of race, gender, and political grounds. Indeed, that the underlying facts are present in the prosecution’s submission – which is to say, they required no reimagining – underscores the urgent need for the feminist approach that Judges Davis and Kumskova model in their reimagining.

Prosecutor v. Abd-Al-Rahman, Decision Establishing the Principles on Victims’ Representation during the Confirmation of Charges Hearing

Judge Anushka Sehmi’s feminist reimagining of the 2021 Decision establishing the principles on victims’ representation during the Confirmation of Charges Hearing in the Abd-Al-Rahman case makes up the fourth and final reimagining of the Darfur cases. The original decision centred on the way that victims from Sudan would participate, and be legally represented, in the Abd-Al-Rahman case.

Judge Sehmi rewrites this decision from a feminist perspective, looking at the importance of consulting with victims on their choice of legal representation. The reimagined decision focuses on what is meant by the need for victims’ participation in proceedings to be ‘meaningful’ – long recognised in ICC jurisprudence – as opposed to ‘purely symbolic’.Footnote ⁴³ The single judge noted that such meaningful participation requires the implementation of strategies that aim at ensuring two-way communication between the affected communities and the Court, most appropriately via the mandates of the Public Information and Outreach Section (PIOS) and the Victims Participation and Reparations Section (VPRS).

The reimagined decision emphasises that the success of victim participation is profoundly dependent on proper outreach and public information activities directed towards victims,Footnote ⁴⁴ and moves to explore the gendered implications of designing and conducting such outreach through an intersectional lens. This includes, necessarily Judge Sehmi asserts, proactive engagement with women, girls, and non-binary individuals who may qualify as victims in the Abd-Al-Rahman case. The reimagined decision reminds the international legal community that the violations committed in Darfur, and as alleged by the prosecution, were heavily gendered and exacerbated structural gender inequalities, rendering women and girls even more vulnerable to being the victims of sexual and gender-based crimes. In turn, women and girls suffered particularly physical, psychological, financial, and social traumatic impacts as a result of being the victims of alleged crimes, which magnified the entrenched pre-existing structural inequalities.

While the original decision treats victims as a monolithic group (though not always in agreement, at least as regards legal representation), Judge Sehmi takes care to embed an intersectional feminist approach, underscoring that while greater outreach is needed to ensure the meaningful participation of women and girls, strategies aimed at achieving this ‘must allow for the full diversity of women, including those of different ethnicities, minority religious or ethnic groups, as well as those from rural or urban backgrounds’.Footnote ⁴⁵ She further underscores the need for a specific strategy for outreach of child victims, who are so often overlooked in trials which evince an adult-centric understanding of violence and harm.Footnote ⁴⁶

Judge Sehmi illuminates how structural inequalities may limit the participation of marginalised groups, including women and girls, in the ICC proceedings – whether as a result of having more limited access to education and corresponding higher likelihood of illiteracy; being tasked with childcare; the stigma of sexual violence, with speaking out exacting high social costs; and living in a patriarchal context where men are assumed to be the ones interacting with authority, such as may be the perception of the ICC. The reimagined decision sets out clear practical steps that PIOS and VPRS should take to ensure meaningful gender-sensitive and inclusive participation in the Abd-Al-Rahman proceedings.

On victim representation, the reimagined decision tackles the widely recognised – but rarely officially discussed – matter of the Registry neither having an inclusive approach to obtaining the views of victims, expressly including those from marginalised communities, on their preferred legal representation nor tackling the lack of diversity within the pool of representation offered. Sehmi’s single judge asserts the need for a more inclusive approach to recruiting victims’ counsel and the importance, given the scale of sexual and gender-based crimes committed against women and girls in Darfur, of counsel having expertise in working with survivors of such crimes.Footnote ⁴⁷

This reimagined judgment in the Darfur cases underscores that a feminist approach needs not only to inform our understanding of the planning, commission, and impact of alleged crimes, but must flow through the operations of the Court if it is to carve a path to justice that leaves no victims in the shadows.

Whether There Are Reasonable Grounds to Believe That at least One of the Crimes within the Jurisdiction of the Court Referred to in the Prosecution Application Has Been Committed

1. 2. The Court observes that under Article 58(1) of the Statute, it shall issue an arrest warrant if the existence of genocidal intent is only one of several reasonable conclusions available on the materials provided by the prosecution.

Key Findings

1. 3. Customary international law has limits to immunity for heads of state. There is no suggestion in any instruments that immunity of heads of state can prevent or exonerate persons from being prosecuted before an international court for international crimes. The drafters of the Statute would have surely been aware of the immunity accorded to heads of state under customary international law, in the context of ICC crimes within the jurisdiction of the Court through Article 27(2).

Preliminary Matter

1. 5. The single judge notes that the Request for Guidance was filed by the legal representative on behalf of a number of individuals who have filed applications to participate in the proceedings as victims of crimes that fall within the scope of this case. In this respect, a valid power of attorney has been submitted to the Registry. Consequently, the present decision sets out the applicable principles and modalities of victim participation with respect to the upcoming confirmation of charges hearings.

A Gender-Sensitive and Inclusive Approach to Victim Participation

1. 9. According to the single judge, meaningful victim participation must be gender-sensitive and inclusive. The Rome Statute is the first international instrument that expressly includes sexual and gender-based crimes, including rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, and other forms of sexual violence as underlying offences of both war crimes and crimes against humanity. The Statute also prohibits persecution based on gender as a crime against humanity. Sexual and gender-based crimes may also fall under the Court’s jurisdiction if they constitute acts of genocide or other acts of crimes against humanity or war crimes. Furthermore, in 2014, the Office of the Prosecutor launched its Policy Paper on Sexual and Gender-Based Crimes, which seeks to help ensure the effective investigation and prosecution of these crimes and enhance access to justice for victims.Footnote ²⁰⁴

2. 10. Article 21 of the Statute outlines the sources of law that are applicable by the Court, which include treaties and ‘principles of international law’. As stated by the Appeals Chamber in relation to Article 21(3), ‘the law applicable under the Statute must be interpreted as well as applied in accordance with internationally recognised human rights. Human rights underpin the Statute; every aspect of it, including the exercise of the jurisdiction of the Court’.Footnote ²⁰⁵ According to the single judge, applying best practices from the normative international human rights law framework is particularly important in ensuring gender-sensitive and inclusive victim participation.

3. 11. The right of women to participate in transitional justice processes is guaranteed under a number of human rights instruments and conventions, including the Universal Declaration of Human Rights (UDHR),Footnote ²⁰⁶ the International Covenant on Civil and Political Rights (ICCPR),Footnote ²⁰⁷ and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).Footnote ²⁰⁸ This right is premised on the inherent dignity and the equal and inalienable right of all people to participate in political and public life, including people of all genders.

4. 12. In its landmark Resolution 1325 (2000) on Women, Peace and Security, the United Nations Security Council (UNSC) recognised the importance of the equal participation and full involvement of women in maintaining and promoting peace and security.Footnote ²⁰⁹ In Resolution 2467 (2019), the UNSC specifically called for women’s meaningful participation in transitional justice processes.Footnote ²¹⁰

5. 13. A gender-inclusive and sensitive approach to victim participation must guide the entire process of facilitating the participation of victims in ICC proceedings and their participation through their legal representative/s. Indeed, a gender-inclusive approach to victim participation is especially important as conflict often exacerbates societal gender inequalities, leaving women and girls even more vulnerable to gross human rights violations and sexual and gender-based crimes (SGBC).Footnote ²¹¹ Thus, the process of victim participation should borrow from human rights law best practices and encourage a gender and women’s rights perspective which allows women to exert their agency.

6. 14. Furthermore, victim participation in ICC proceedings should aim to address underlying structural causes of gender inequality. For example, UNSC Resolution (2019) states as follows:

   Transitional justice processes should seek to address the underlying gender inequality in societies. Redressing such inequality entails addressing the needs and priorities of all women and girls, lesbian, gay, bisexual, transgender, queer and intersex individuals, and survivors of sexual and gender-based violence, including men and boys, as well as guaranteeing their safe and meaningful participation in those processes.Footnote ²¹²

7. 15. Consequently, addressing the structural causes of gender inequality requires that the Court adopt a ‘transformative’ approach to victim participation. Rees and Chinkin argue that ‘transformative justice’ must have ‘gender relations at its center’.Footnote ²¹³ In the opinion of the single judge, ‘transformative’ victim participation in the context of ICC proceedings requires a contextual, bottom-up, and locally grounded approach geared towards addressing structural inequalities, including those related to gender, which arguably are some of the root causes of conflict.Footnote ²¹⁴

8. 16. Furthermore, the idea of transformative justice has been articulated in several UN documents on reparations. For example, the Guidance Note of the Secretary General on Reparations for Conflict-Related Sexual Violence (CRSV) instructs that ‘[R]eparations should strive to be transformative, including in design, implementation and impact’.Footnote ²¹⁵ In the opinion of the single judge, transformative justice is not only limited to the reparations phase of the proceedings, but also to victim participation.

9. 17. White has articulated an ascending scale of four general forms of participation: nominal; instrumental; representative, and transformative.Footnote ²¹⁶ In the opinion of the single judge, these principles of participation are wholly applicable to victim participation at the ICC and consequently victim participation should aim to be transformative, empowering victims as opposed to those acting on their behalf, and allow them to engage with the Court on their own terms.Footnote ²¹⁷

10. 18. There exist varied gendered experiences and consequences of conflict, and therefore women’s inclusion must be proactively sought throughout the process of facilitating victim participation in order to ensure that it is meaningful. However, meaningful and ‘transformative’ victim participation should not be tokenistic and performative through the mere numerical inclusion of women; rather, it should aim to ensure that they can communicate their views and concerns and have their input incorporated into any relevant processes. In addition, given that victim communities do not exist in a vacuum and often form part of larger patriarchal social and political structures dominated by men, it is necessary for the Registry to expect some resistance to gender-inclusive victim participation and design strategies that will counter such resistance.

11. 19. Furthermore, it is important to recognise that women are not a monolithic group, and victim participation processes must allow for the full diversity of women, including those of different minority religious or ethnic groups, as well as those from rural or urban backgrounds, to participate in ICC proceedings. In particular, the Registry and their interlocutors must proactively seek to engage with women, girls, and non-binary individuals who may be eligible to participate in ICC proceedings.

12. 20. Steps should be taken at every stage of the victim participation process in order to ensure the participation of marginalised groups or persons depending on the victim’s sex or gender identity. It is crucial for the Registry to ensure the inclusion of women and girls who may have a disadvantaged socio-economic status. In line with international human rights standards, the single judge submits that the facilitation of victim participation by VPRS and its intermediaries must be fulfilled without discrimination based on sex, gender identity, ethnicity, race, age, political affiliation, class, marital status, sexual orientation, nationality, religion, and disability, or any other status.

13. 21. In addition to the victim’s sex or gender identity, any other intersecting factors, such as a victim’s social or political identity, must also be considered in order to prevent any discrimination against them during the facilitation of victim participation. Indeed, discrimination against women can affect them in intersectional ways (including race, ethnicity, age, sexual orientation, and gender identity, amongst others).Footnote ²¹⁸ Thus, it is necessary for the Registry to remain mindful of intersectional forms of discrimination when facilitating victim participation.

14. 22. Furthermore, women and girls also face significant structural and cultural inequalities in many contexts within which this Court operates and generally worldwide.Footnote ²¹⁹ For example, women and girls may face greater obstacles than their male counterparts in having their voices heard in processes that impact their interests.Footnote ²²⁰ Some of these obstacles may be practical, such as childcare responsibilities or those relating to work, especially in the home.Footnote ²²¹ In addition, in certain cultures women’s voices may generally be marginalised due to traditional, religious, and cultural practices that operate within many contexts, including in Sudan.Footnote ²²²

15. 23. In addition, women and girl survivors of SGBC may face even greater obstacles to having their voices heard given their trauma or the silencing of their experiences.Footnote ²²³ Furthermore, in certain communities women may be discouraged from attending school or may be married at a younger age, limiting their educational opportunities.Footnote ²²⁴ This may have a direct and disproportional impact on their levels of literacy, and consequently their ability to complete victim application forms or adequately convey their views with regard to their choice of legal representation.Footnote ²²⁵

16. 24. Therefore, it is critical for the Registry to assess whether such obstacles exist and implement strategies in order to ensure the equal participation of women in the victim participation process. This could be through the organisation of ‘women only’ spaces which would allow women to speak more freely, or through separate meetings for survivors of SGBC.

17. 25. Furthermore, women’s meaningful participation in roles of leadership can also actively confront patriarchal power structures and entrench women’s status as equal rights bearers within a community.Footnote ²²⁶ In relation to VPRS’s intermediaries, the single judge notes that it can be the case that men and male voices are amplified over others, such that men may be more likely to volunteer as intermediaries for VPRS. As such, the single judge submits that VPRS must take steps to ensure that women are given the opportunity to participate in this type of ‘leadership’ role as per the ICC Guidelines on Intermediaries.Footnote ²²⁷

18. 26. The reason for this is twofold: firstly, it will engender a gender-sensitive and inclusive approach to victim participation if women are afforded such positions of leadership, effectively allowing them to exercise their agency throughout the victim participation process. Secondly, the presence of female intermediaries will possibly make it easier for other female victims or victims of SGBC to give a fuller account of the harm they have suffered. Given that it is often the case that VPRS intermediaries, rather than staff of VPRS, assist victims in the completion of victim application forms, ensuring that victims are comfortable enough to express the totality of the harm they have suffered must be a key consideration in the choice of intermediary. Furthermore, it may be easier for female intermediaries to access networks of victims who may be hesitant to speak to men. In this way, women’s inclusion in leadership positions, such as that of a VPRS intermediary, or the spokesperson for a group of victims, rather than solely as ‘victims, for example of SGBC’, can help cement the role of women in transitional justice processes.

19. 27. The suspect in this case, Mr Al-Rahman, has been charged by the Prosecutor in Counts 8–9 of perpetrating rape as a crime against humanity and a war crime.Footnote ²²⁸ In Bindisi and the surrounding areas, militia/Janjaweed and Government of Sudan forces allegedly raped at least seventeen women.Footnote ²²⁹ However, as is often the case in times of conflict, the number of sexual violence survivors may be greater than those stated in official figures.Footnote ²³⁰ Therefore, it is highly likely that VPRS and their intermediaries will encounter a larger number of victims of SGBC.

20. 28. Although it may be harder to ensure that victims of SGBC come forward and participate in ICC proceedings due to the possibility of stigma and ostracism, the single judge believes that a well-thought-out strategy for victim participation will ensure that victims of any gender will feel comfortable enough to participate in ICC proceedings. At the same time, it is important to remain mindful that although women are disproportionately impacted by SGBC, the Registry should avoid equating ‘woman or girl victims’ with ‘victims of sexual violence’, as this could further victimise women and sideline male and gender-non-binary victims of SGBC.

21. 29. Lastly, special attention must be paid to the participation of child victims in ICC proceedings, including their age, maturity, and the harm that they have suffered, in order to prevent further harm or trauma. Child victims should feel comfortable enough to express their views and concerns freely and the VPRS should implement measures in order to ensure the protection of their rights, especially those girls who may be affected by SGBC. However, at the same time, VPRS and their intermediaries must remain aware of potential violations against men and boys, which tend to result in stigma and silence.Footnote ²³¹ To this end, the single judge encourages a statistical evaluation of the number of victim application forms received in order to ensure sufficient gender representation. However, it must be borne in mind that gender inclusiveness cannot be solely represented by numbers, but, rather, ‘meaningful’ participation requires that women, girls, and non-binary individuals are able to exert their agency and influence through justice processes, such as victim participation in ICC proceedings. Thus, the single judge stresses that the representation of women and girls should not be limited to the cosmetic and numerical ‘inclusion of women’ but should also ensure that women are heard, and able to exercise their agency.

Effective Communication

1. 30. It has been argued that an essential element of meaningful victim participation is ‘frequent communication and consultation between victims and the Court’.Footnote ²³² Meaningful participation necessarily requires that victims are not treated as an ‘abstract or symbolic entity, but as individual rights-bearers with opinions’ that are relayed to the Court.Footnote ²³³

2. 31. The single judge concurs that one of the foundational elements of meaningful victim participation is the implementation of strategies aimed at ensuring consistent two-way communication between affected communities and the Court. Indeed, as highlighted in the previous section, consultation is also an essential element of transitional justice.Footnote ²³⁴ This function appropriately falls within the mandate of the Public Information and Outreach Section (PIOS) and VPRS.

3. 32. The role of the VPRS in assisting victims in completing victim application forms, as well as collecting application forms is underscored by Regulation 86(9) of the Regulations of the Court (RoC) and Rule 16(1) of the RPE. Regulations 5bis and 6 of the Regulations of the Registry outline the Registry’s role in ensuring public dissemination of appropriate, neutral, and timely information concerning the activities of the Court through public information and outreach programmes. Further to this, public information programmes must be aimed at ‘fostering public understanding and support for the work of the Court’.Footnote ²³⁵

4. 33. Pre-Trial Chamber I in the situation in PalestineFootnote ²³⁶ called on the Registrar to create an information and communication system between the Court and victims, stating that ‘outreach and public information activities in situation countries are quintessential to foster support, public understanding and confidence in the work of the Court. At the same time, they enable the Court to better understand the concerns and expectations of victims, so that it can respond more effectively and clarify, where necessary, any misconceptions’.Footnote ²³⁷ Similarly, Pre-Trial Chamber III has stated that, ‘in order to be able to properly exercise their rights, victims should be provided with sufficient and accurate information about the Court’s role and activities’.Footnote ²³⁸

5. 34. The Assembly of States Parties (ASP) has also underscored the importance of providing victims and affected communities with information regarding the activities of the Court, ‘in order to put into effect, the unique mandate given to the International Criminal Court towards victims’.Footnote ²³⁹

6. 35. Furthermore, the ICC’s Integrated Strategy for External Relations, Public Information and Outreach has defined outreach as a ‘process of establishing sustainable two-way communication between the Court and communities affected by the situations that are subject to investigations. It aims to provide information, promote understanding and support for the Court’s work and to provide access to judicial proceedings’.Footnote ²⁴⁰

7. 36. Consequently, for the Court to properly fulfil its mandate, it is essential that its role and activities are clearly understood by affected communities. Outreach and public information activities are critical not only to engender support for the Court but, more importantly, to establish a two-way form of communication between the Court and affected communities.

8. 37. In the opinion of the single judge, outreach plays an integral role in informing victims of their participatory rights under the Statute. The success of victim participation in ICC proceedings is highly dependent on proper outreach and public information activities directed towards victims by both PIOS and the VPRS. Outreach regarding victim participation ensures that victims are aware of their participatory rights under Article 68(3) of the Statute. Furthermore, it lays the groundwork for the dissemination and collection of victim application forms within affected communities by the VPRS.

9. 38. Therefore, it is crucial for the VPRS and PIOS to work together in order to inform victim communities of their right to participate in ICC proceedings under the Statute; the practicalities of the victim participation process, including the temporal, material, and territorial scope of the case; and respond to relevant questions from victim communities. To this end, the Registry must employ a bottom-up and focused strategy, and enable harmony between victims’ needs and institutional responses. Victim participation should be viewed as an ongoing process, entailing dialogue and constant adaptation, in order to ensure that it is meaningful.

10. 39. At the same time, the single judge is cognisant of several obstacles that have prevented PIOS and VPRS from conducting outreach with affected communities and informing eligible victims of their right to participate in these proceedings.

11. 40. Firstly, the Registry has been unable to establish a field presence in Darfur as a result of budgetary constraints and the attendant need to allocate the Court’s limited resources across multiple situations and cases.Footnote ²⁴¹ Consequently, this means that at present there is potentially a huge information vacuum in Darfur regarding the Court’s activities and mandate that must be addressed.

12. 41. Secondly, ongoing security concerns in Darfur and the surrounding areas over the past few years has meant that the establishment of a Field Office has faced significant hurdles, apart from those related to budgetary concerns.Footnote ²⁴² The single judge is aware that the security situation has meant that many victims have left the region and are living either in other parts of Sudan or have left the country entirely and now form part of the Darfurian diaspora.Footnote ²⁴³

13. 42. Thirdly, the COVID-19 worldwide pandemic has greatly affected the mobility and ability of staff members of the Court to conduct field missions, in Darfur or where members of the Darfurian diaspora may reside, in order to carry out general outreach,Footnote ²⁴⁴ inform victims of their right to participate, and solicit their views on the choice of their legal representation in proceedings, should they be eligible to participate.Footnote ²⁴⁵

14. 43. However, the single judge contends that despite these obstacles the Court still has a binding duty to fulfil its mandate to the best of its ability, bearing in mind that in some instances this may necessitate adapting to a new set of circumstances, especially considering the COVID-19 pandemic. Indeed, the Court simply cannot fulfil its mission without ensuring that the affected communities are able to understand the Court’s mandate, the judicial proceedings, and their right to participate in proceedings and claim reparations.

15. 44. Consequently, PIOS and VPRS, in consultation with the relevant Registry sections, must consider the feasibility of conducting field missions in Chad, Darfur, or other locations where potential victims reside, in order to commence the process of consulting with victims, providing them with information regarding the application process, disseminating victim application forms either directly or through VPRS intermediaries, and collecting completed victim application forms either manually or electronically.

16. 45. Given the pervasive and unpredictable impact of the COVID-19 pandemic on the operations of the Court, the single judge supports creative solutions that would enable communication between the Court and victim communities. For example, where logistical and security considerations make it difficult to consult with victims directly, VPRS should consider the possibility of consulting victims though secure online platforms, in collaboration with VPRS intermediaries, and in consultation with the relevant security sections within the Court. In addition, given the easing of travel restrictions, PIOS and VPRS should consider the feasibility to travelling to countries where a significant number of the affected Darfurian diaspora reside.

Legal Representation of Victims

1. 46. Lastly, meaningful victim participation is not possible without quality legal representation. It has been argued that the entire system of victim participation at the ICC ‘feminizes and infantilizes’ victims and they are consistently treated as ‘weaker’ participants who do not need to be consulted on major decisions that impact on their interests.Footnote ²⁴⁶ One of these major decisions is victims’ choice of legal representation. However, ensuring a meaningful and gender-inclusive system of victim participation will entrench a system of victim participation that seeks to empower victims, and not marginalise them.

2. 47. Consultations with victims must not only be limited to their participation in legal proceedings but should include their views on their choice of legal representative. The system of victim participation at this Court must seek to empower victims, rather than marginalise them; it must ensure that victims are not ‘infantilised’ and disempowered in these processes; and consequently, victims must be consulted on decisions that impact on their interests. In the opinion of the single judge, one of the most important decisions that victims can make is their choice of legal representative/s.

3. 48. As noted by the Pre-Trial Chamber in the Situation in the Republic of Kenya:

   [W]hen deciding on the selection of the Common Legal Representative, the Chamber must balance a number of requirements. These requirements include in particular (a) the need to ensure that the participation of victims, through their legal representative, is as meaningful as possible, as opposed to purely symbolic; (b) the purpose of common legal representation, which is not only to represent the views and concerns of the victims, but also to allow victims to follow and understand the development of the trial.Footnote ²⁴⁷

4. 49. To this, the single judge would add that the process of in-person consultation and engagement with victim communities is arguably the core function of the legal representative and potentially may also have a restorative justice function.Footnote ²⁴⁸

5. 50. Rule 90(1) of the RPE provides that ‘A victim shall be free to choose a legal representative’. However, given the often large number of victims who are eligible to participate in proceedings, Rule 90(2) provides that ‘the Chamber may, for the purposes of ensuring the effectiveness of the proceedings, request the victims or particular groups of victims, if necessary, with the assistance of the Registry, to choose a common legal representative or representatives’.

6. 51. The single judge notes that the legal representative of potential victims in their Request for Guidance represents 102 individuals who are seeking permission to participate in the confirmation of charges hearings.Footnote ²⁴⁹ The legal representative in question notes that she ‘has been instructed to represent a number of victim advocacy groups’,Footnote ²⁵⁰ and through her work with these organisations, she has identified 102 potential survivors who have suffered harm that potentially falls within the scope of the charges in this case.Footnote ²⁵¹

7. 52. The single judge notes that the process of an appointment of legal representation for victims should be driven by consultation with victims and through an open and transparent recruitment process of counsel, whether the outcome is the Office of Public Counsel for Victims (OPCV) or external counsel. In this respect, the single judge notes with concern two issues in relation to the ongoing practice for appointment of counsel for victims at the Court. Firstly, there has been a tendency to appoint the OPCV as the common legal representative for victims without due consideration to victims’ views or existing representation.Footnote ²⁵² Secondly, it has been the case that external counsel who have been able to establish ‘first contact’, so to speak, with victim communities have the expectation that they will automatically be appointed as common legal representative in their respective cases.Footnote ²⁵³

8. 53. Both practices are problematic in their own way. The blanket representation of victims by the OPCV in all situations before this Court clearly raises issues of a lack of diversity in representation and perhaps prevents victims from choosing lawyers from their own country, or those with a different set of expertise. This lack of diversity also has an impact on the complementary nature of the Court and the importance of creating/harnessing expertise on victim representation and international criminal law more broadly beyond The Hague through external legal representatives and their support staff.

9. 54. For example, it could be the case that victims would like to be represented by lawyers who are able to speak to them in their own language or be able to establish a permanent field presence in the relevant country. At the same time, there may be groups of victims who would prefer to be represented by the OPCV given their institutional positioning and familiarity with the Court’s practices and jurisprudence.

10. 55. With regard to counsel who are ‘first on the scene’, so to speak, either as a result of them being from the same country or for other reasons, and are able to obtain powers of attorney from victim communities first, the single judge notes that this practice must not be systematised within court procedures such that these lawyers are automatically appointed as common legal representative by virtue of them being the first to have obtained powers of attorney from victims.

11. 56. Victim communities are often traumatised and vulnerable in the aftermath of conflict, and therefore may appoint the lawyer that happens to approach them first. It may be the case that these lawyers are not well versed in international criminal law, or not well suited to represent victims for other reasons – for example, there may exist conflicts of interest or potentially better suited candidates with specific expertise, on SGBC, for example. Thus, it is the opinion of the single judge that all lawyers who are interested in representing victims, including the OPCV, must go through a competitive recruitment process in order to ensure they have the necessary expertise to represent victims in a particular situation country. Furthermore, and more importantly, victims must be consulted on their opinion of the candidates, including those who may already be representing them, in order to ensure that victims are given proper agency in the appointment of a legal representative.

12. 57. Thus, taking into consideration the above, the single judge notes that in order to ensure that the system of victim participation at this Court empowers victims, victims must be able to have a choice in the appointment of their counsel, and a fair and transparent recruitment process of victims’ counsel must take place in order to ensure that the counsel selected have the necessary expertise in representing victims in international criminal proceedings, such as those before the ICC. Such expertise may include specific language skills; familiarity with the local context; previous expertise in representing victims; expertise in international criminal law; an established practice of working with victims of SGBC; proximity to the local communities; amongst others.

13. 58. Again, the single judge would like to emphasise the importance of ensuring that consultations with victims on their choice of legal representation include the views of women and girls, whether victims of SGBC or not, male victims of SGBC, and other non-binary individuals. Consultations with victims must not be dominated by male voices and there must be room for women and girls, as well as other marginalised and intersecting groups, to have the opportunity to air their views and opinions.

14. 59. Lastly, given the prevalence of SGBC in conflict, whether charged or not, it is the opinion of the single judge that counsel appointed to represent victims will have the necessary expertise with working with victims of SGBC or will endeavour to appoint team members with the necessary expertise.

    FOR THESE REASONS, THE SINGLE JUDGE HEREBY

    • ORDERS the Registry, to establish, as soon as practicable, a system of public information and outreach activities relating to victim participation for the benefit of the victims and affected communities in Darfur and report back to the single judge in compliance with the principles established in the present decision.

    • ORDERS the Registry, in consultation with ICC Security Section, to undertake the feasibility of a mission to South Sudan/Chad to consult with victims, or alternatively arrange meetings with victims in neighbouring states, as well as consider meeting victims who may be in the diaspora.

    • ORDERS the Registry to facilitate the participation of victims through outreach, liaising with intermediaries, and the dissemination and collection of victim application forms in line with the principles laid out in this Decision.

    • ORDERS the Registry to consult victims on their choice of legal representation and report back to the Chamber regarding the outcome these consultations, with the view to conducting an open recruitment process in relation to the organisation of common legal representation.

Judge Anushka Sehmi

The Perpetrator Severely Deprived One or More Persons of Fundamental Rights

1. 8. Article 7(2)(g) of the Statute defines ‘persecution’ as ‘the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity’.

2. 9. The Statute also requires, under the fourth element of persecution, a connection between gender persecution and an act under its Article 7(1) or any crime within the jurisdiction of the Court. Since all crimes under the Statute are violations of fundamental rights and all persecutory conduct violates the fundamental right to be free from discrimination, the violation of the right to be free from discrimination in connection with any relevant crime prohibited by the Statute always constitutes a severe deprivation of fundamental rights.Footnote ²⁶¹

3. 10. The Court also recognises that it is in the interest of justice to consider all human rights violations that cumulatively constitute a severe deprivation of fundamental rights in connection to an act or acts of gender persecution.Footnote ²⁶² For this reason, the Court considers a broad range of human rights violations.Footnote ²⁶³

4. 11. The Chamber notes that the Statute should be interpreted and applied in accordance with internationally recognised human rights pursuant to Article 21(3) and may consult ‘applicable treaties’ where ‘appropriate’ under Article 21(1)(b).Footnote ²⁶⁴ Such rights are enshrined in, for example, the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR) (taken together these are known as the ‘international bill of human rights’); the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Convention on the Elimination of All Forms of Discrimination Against Women; the Convention on the Rights of the Child; the International Convention for the Elimination of Racial Discrimination; the Convention on the Rights of Persons with Disabilities; the African Charter on Human and Peoples’ Rights; the American Convention on Human Rights; the European Convention on Human Rights; and other international or regional instruments on international human rights.Footnote ²⁶⁵

5. 12. The Chamber therefore calls on the Prosecutor to consult applicable treaties and other relevant international or regional human rights law in its analysis of the severe deprivation of fundamental rights in connection to any acts of persecution in its charges against Mr Abd-Al-Rahman.

The Perpetrator Targeted Persons by Reason of the Identity of a Group or Collectivity or Targeted the Group or Collectivity as Such

1. 13. The Statute requires that the perpetrator targets a person or persons either based on ‘the identity of a group or collectivity’ or ‘targeted the group or collectivity’.Footnote ²⁶⁶

2. 14. The ‘targeted group’ may be, and frequently is, larger than persons who are perceived to exhibit the criteria of the group and must be interpreted broadly.Footnote ²⁶⁷ In accordance with tribunal jurisprudence, the ‘targeted group’ is defined by the perpetrator and may include such victims who, due to their affiliations or sympathies for members of the identity protected under the prohibited grounds for persecution, may become part of the targeted group.Footnote ²⁶⁸ The targeted group may also be defined as non-members of a specific group, meaning persons targeted for being perceived as non-members of an accepted group.Footnote ²⁶⁹

3. 15. For gender persecution, this means the targeted group may simply be anyone who does not exhibit the acceptable gender criteria such as the roles, behaviours, activities, or attributes assigned to groups relevant for discriminatory targeting.Footnote ²⁷⁰ As the policy on the crime of gender persecution notes, ‘[g]roups targeted for gender persecution include, for example, women, girls, men, boys and LGBTQI+ persons, and subsets of these groups’.Footnote ²⁷¹

The Perpetrator’s Targeting Was Based on Gender Grounds

1. 16. Under Article 7(3) of the Statute, the term ‘gender’ refers to ‘the two sexes, male and female, within the context of society’.Footnote ²⁷² The policy explains that ‘gender’ refers to sex characteristics and social constructs and criteria used to define maleness and femaleness, including roles, behaviours, activities and attributes’.Footnote ²⁷³ The policy further clarifies that ‘gender persecution is committed against persons because of sex characteristics and/or because of the social constructs and criteria used to define gender’.Footnote ²⁷⁴ The Chamber accepts the policy’s interpretation of Article 7(3) of the Statute because this interpretation is in accordance with decades of internationally recognised human rights, which is relevant in this Court by virtue of Article 21(3) of the Statute. Accordingly, the inextricable link between ‘gender’ and ‘sex’ should not be conflated.

The Conduct Was Committed in Connection with Any Act Referred to in Article 7, Paragraph 1 of the Statute

1. 17. As noted above, the persecutory conduct must be committed in connection with any act referred to in Article 7(1) of the Statute (underlying act) and results in the severe deprivation of a victim’s fundamental rights.Footnote ²⁷⁵ The policy notes that,

   The threshold for element one of gender persecution is always met when the crime[s] under the Statute are committed with discriminatory intent. This is because all crimes under the Statute are violations of fundamental rights and all persecutory conduct violates the fundamental right to be free from discrimination. Taken together, the violation of the right to be free from discrimination in connection with any relevant crime prohibited by the Statute always constitutes a severe deprivation of fundamental rights.Footnote ²⁷⁶

2. 18. In addition to satisfying its own elements pursuant to Article 7(1) of the Statute, an underlying act may also trigger other multiple and severe fundamental rights deprivations. As the policy notes, ‘fundamental rights deprivations based on discriminatory grounds, should always be considered cumulatively’.Footnote ²⁷⁷ Identifying these additional deprivations helps to establish sufficient evidence to support the charge of gender persecution, providing a holistic and accurate historical record of atrocities and a clearer pathway to the non-repetition of crimes and sustainable peace.

Background to the Conflict

Since gaining independence in 1960, CAR has experienced political instability, military coup attempts and army mutinies, and almost a constant state of rebellion which erupted into armed conflict a number of times. In 2001, (then) President Ange Félix Patassé faced two attempted coups, and in 2002 he faced another rebellion led by General François Bozizé. Unable to rely on his weakened army to fend off Bozizé’s rebellion, Patassé obtained the support of Democratic Republic of Congo (DRC) politician Jean-Pierre Bemba Gombo’s military group, the Mouvement de libération du Congo (MLC), which operated mostly in the southern CAR regions bordering the DRC. But Patassé was unsuccessful: the MLC was unable to defeat the rebels, and in 2003 Bozizé seized the presidency. Since that 2003 coup by Bozizé, the majority of the territory, and especially the northern areas, have been controlled by rebels.

In 2004, the CAR armed forces waged war against the Union of Democratic Forces for Unity (UFDR) but, despite efforts to achieve peace and disarmament, attacks against civilians persisted. In 2013, a coalition of various rebel groups known as Séléka (a predominantly Muslim group) accused the government of failing to abide by the peace agreements and seized the capital Bangui. Bozizé fled the country and Séléka leader Michel Djotodia declared himself president. Renewed fighting began between Séléka and militias opposed to them, called Anti-Balaka (a predominantly Christian coalition). In September 2013, President Djotodia disbanded the Sélékan, which had lost its unity after taking power, and resigned in 2014. He was replaced by Catherine Samba-Panza, but the conflict continued. Faustin-Archange Touadéra, who was elected president in 2016, ran and won the 2020 election. That triggered the main rebel factions to form an alliance opposed to the election, called the Coalition of Patriots for Change, which was coordinated by former President Bozizé. This non-international armed conflict in CAR is ongoing and has resulted in targeted violence against civilians suspected of being supporters of either group or on the basis of their religious or ethnic affiliation.

Situation in the Central African Republic I

After receiving a referral from the government of the CAR led by President Bozizé in 2004, the (then) ICC Prosecutor, Luis Moreno-Ocampo, opened a preliminary examination and investigation into alleged crimes against humanity and war crimes committed on the territory of CAR from 1 July 2002 to March 2003.Footnote ¹ Notably, there would be no ICC trials against Bozizé’s forces; the ICC only prosecuted crimes committed by the opposing MLC.

The main case to be prosecuted was against Mr Jean-Pierre Bemba Gombo (Mr Bemba), commander of MLC forces, for war crimes and crimes against humanity committed by those forces, including the murder and rape of civilians and the pillaging of their homes and workplaces.Footnote ² Proceedings were also initiated against Bemba and four other individuals for offences against the administration of justice, in connection with the Bemba case: Aimé Kilolo Musamba, Fidèle Babala Wandu, Jean-Jacques Mangenda Kabongo, and Narcisse Arido.

Bemba, as MLC president and commander-in-chief, deployed those troops to the CAR at the request of former CAR President Patassé. Between October 2002 and March 2003, MLC troops directed a widespread attack against the civilian population of the CAR, committing brutal murders, rapes, and pillaging. In 2016, he was convicted of crimes against humanity and war crimes by the ICC Trial Chamber on the basis that he was responsible for the crimes committed by MLC troops in the CAR under the principle of command responsibility. However, he was acquitted of all charges on appeal in 2018, when the majority of the Appeals Chamber overturned the Trial Chamber’s findings on command responsibility.Footnote ³

The following rewritten judgments reimagine four decisions in the Bemba case, including the Warrant of Arrest, Confirmation of Charges, Sentencing, and Appeal.

Feminist Reimagining of Select Judgments and Decisions

Situation in the Central African Republic II

The ICC Prosecutor, Fatou Bensouda, opened a preliminary investigation in 2014 and determined there was a reasonable basis to believe war crimes and crimes against humanity had been committed in CAR since 2012.Footnote ⁹⁰ Alleged war crimes and crimes against humanity committed by both Séléka and Anti-Balaka include inter alia murder, torture, persecution and other inhumane acts, use of child soldiers, rape, and sexual violence.

The subject of the final rewritten judgment is the first case arising from the ICC’s second investigation into the CAR, against Alfred Yekatom, alleged former Anti-Balaka commander, and Patrice-Edouard Ngaïssona, alleged former senior leader in the Anti-Balaka movement, who both had warrants of arrest issued against them in 2018.Footnote ⁹¹

Imagining Gender Justice beyond the Rules

The preceding reflections of rewritten judgments highlight both the opportunities but also the limitations of using a feminist approach within the confines of international criminal law and the Rome Statute. Engaging in truly feminist legal reasoning requires reasoning from context rather than reasoning from the abstract. Thus, consideration must be given to the lived experiences of victims of international crimes, such as gender-based crimes, and how those crimes may be experienced differently depending on gender (norms). Therefore, judges should be free to incorporate information that contextualises the crimes further, and should include the contextualisation of gender norms as it relates to gender-diverse people.

As an example, in Judge Keith’s rewritten judgment, she could have further expanded on the socio-economic consequences of rape, including victims’ financial lack of capacity to be able to access a series of basic rights, such as healthcare, education, and employment opportunities as essential components of their reintegration into society. An analysis of structural gender-based discrimination predating the conflict and further exacerbated by it could also have enriched the contextual background. For instance, in its concluding observations on the Central African Republic in 2000, the UN Committee on the Rights of the Child expressed its concern about ‘extensive discrimination against girls with regard, in particular, to access to education and inheritance rights’.Footnote ¹¹⁴ Similarly, in 2006, the UN Human Rights Committee noted with concern a persistent pattern of discrimination against women, both in the exercise of their political rights and in the area of education. It was also concerned about discrimination against women in the marriage relationship, in particular with regard to the exercise of parental authority and the choice of residence.Footnote ¹¹⁵ In addition, the Committee expressed its concern with regard to the practices of female genital mutilation and polygamy that adversely impact women’s rights.Footnote ¹¹⁶ Structural gender inequalities and stereotyping, including discriminatory access to education, employment opportunities, and therefore financial resources, significantly hamper women’s and girls’ rehabilitation, empowerment, and social inclusion, which are also key for prevention and non-recurrence of sexual violence.Footnote ¹¹⁷

Another example relates to Judge Eichert’s reimagining of ‘forced nudity’. The gendered harm of the crime could have been better contextualised in a non-Western setting where sexual orientation and gender identity are not really publicly discussed. In this regard, going beyond the rules may include making an extra effort to search for cultural, customary, or other traditional practices that could support integration of gender-diverse people and recognition of forced nudity as a form of gender-based violence grounded in agreed cultural norms in that society which may not necessarily coincide with codified international criminal law.

We conclude by observing that there is no one universal feminist frame used throughout all rewritten judgments. This is both purposeful and necessary. When (re)writing judgments concerning diverse peoples with diverse conceptions of pain and loss, it is useful and necessary to approach complex legal issues with fully contextualised understanding of those issues, including contexts of gender, sexuality, race, and culture.

Previous Treatment of Forced Nudity in International Legal Sources

1. 9. Forced nudity has been recognised in multiple international contexts as a serious violation that is comparable to other sexual crimes and forms of inhuman treatment. Notably, the Istanbul Protocol, an authoritative United Nations document about torture, states that ‘[s]exual torture begins with forced nudity … An individual is never as vulnerable as when naked and helpless. Nudity enhances the psychological terror of every aspect of torture, as there is always the background of potential abuse [or] rape’.Footnote ¹³¹

2. 10. Forced nudity has been addressed in cases before other international tribunals. Notably, in Akayesu the International Criminal Tribunal for Rwanda (ICTR) ruled that the accused was criminally responsible for various crimes of sexual violence, including one episode where a young girl was forced to undress and do gymnastics for a group of soldiers.Footnote ¹³² The International Criminal Tribunal for the former Yugoslavia (ICTY) similarly found that sexual violence had occurred in the judgment for Kunarac et al., where three women were forced to dance on a table nude,Footnote ¹³³ and in Brđanin, where a woman was forced to undress in front of a crowd of cheering male soldiers.Footnote ¹³⁴

3. 11. Moreover, pursuant to Article 21(3) of the Statute which requires that the interpretation of law be consistent with internationally recognised human rights, it is notable that human rights courts and treaty bodies have ruled on the issue of forced nudity. Both the Inter-American Court of Human Rights and the European Court of Human Rights have found forced nudity to be a serious human rights violation, especially where the victim is forced to be nude in unhealthy or cold conditions,Footnote ¹³⁵ in the presence of unmuzzled dogs,Footnote ¹³⁶ or before an officer of a different gender.Footnote ¹³⁷ The UN Human Rights Committee and the Committee against Torture have similarly ruled that forced nudity can amount to a serious human rights violation, such as in cases where the victim was whipped while naked,Footnote ¹³⁸ forced to comply with humiliating strip searches,Footnote ¹³⁹ forced into painful poses while naked,Footnote ¹⁴⁰ or forcibly undressed before family members.Footnote ¹⁴¹ Furthermore, the Human Rights Committee has even ruled that being threatened with public nudity without actually being forced to undress can amount to a human rights violation, as in the case of one man who experienced threats that the police would ‘parade him naked in front of women and female children’.Footnote ¹⁴²

4. 12. The potential seriousness of forced nudity was also reaffirmed by the Appeals Chamber for the Special Court of Sierra Leone, which asserted that the prohibition on ‘inhumane acts’ could include different forms of sexual violence, including the ‘forced undressing of women and marching them in public, forcing women to perform exercises naked, … torture, sexual violence, humiliation, harassment, psychological abuse, and confinement in inhumane conditions’.Footnote ¹⁴³

Discussion

Request for Further Information

1. 29. In all three allegations submitted by the Prosecutor, it would be reasonable to assume that the victims experienced significant harm from the weaponisation of gendered ideas and the humiliation of public nudity. Moreover, the threat of rape after being forced to undress could have left victims with a deep feeling of insecurity and unease, especially given the larger context of alleged rape by MLC combatants. These elements suggest that the charges listed by the Prosecutor are of sufficient gravity to merit further consideration by this Court.

2. 30. Pursuant to Article 69(3) of the Rome Statute, the Court has ‘the authority to request the submission of all evidence that it considers necessary for the determination of the truth’. Because the Prosecutor provided little background about the meaning of forced nudity in the CAR, this Chamber deems it necessary to request that all parties provide specific information about gendered norms which are relevant to understanding public perceptions of nudity in the local context. Ideally much of this information should come from the victims themselves, who are the most capable of articulating the feelings evoked by their experiences. Such testimony can be complemented by expert testimony about gender in the CAR and evidence about other crimes committed during the conflict to situate victims’ allegations of harm.

Legality of Cumulative Charging in International Criminal Law

1. 15. Concerning the question of the legality of cumulative charging, the Chamber will consider the developments in international criminal law. The Chamber notes that cases from ad hoc criminal tribunals have mapped the developments and legality of cumulative charging, including the conditions in which this practice is permissible in the field of international criminal law. Due regard will be given to relevant case law within the field.

2. 16. At the International Criminal Tribunal for the former Yugoslavia (ICTY), the Appeals Chamber in the Delalic case found ‘that multiple criminal convictions entered under different statutory provisions but based on the same conduct are permissible only if each statutory provision involved has a materially distinct element not contained in the other’.Footnote ¹⁷⁵ The Delalic judgment indicates that cumulative charging is permitted when the charges relate to crimes containing materially distinct elements from the other crimes.

3. 17. Trial Chamber I of the International Criminal Tribunal of Rwanda (ICTR) reached a similar conclusion in the Akayesu case by finding that:

   On the basis of national and international law and jurisprudence, the Chamber concludes that it is acceptable to convict the accused of two offences in relation to the same set of facts in the following circumstances: (1) where the offences have different elements; or (2) where provisions creating the offences protect different interests; or (3) where it is necessary to record a conviction for both offences in order fully to describe what the accused did.Footnote ¹⁷⁶

4. 18. Multiple cases from the ICTR, ICTY, and the Special Court for Sierra Leone confirm that multiple criminal charges can be based on the same factual conduct.Footnote ¹⁷⁷ In the Kupreskic case, the ICTY Trial Chamber endorsed cumulative charging if the statutory provisions relied on are designed to protect different social values and if each offence has a distinctive element.Footnote ¹⁷⁸ This is demonstrated by the Trial Chamber’s finding that ‘the Prosecutor may be justified in bringing cumulative charges when the Articles of the Statute referred to are designed to protect different values and when each Article requires proof of a legal element not required by the others’.Footnote ¹⁷⁹

5. 19. Trial Chamber II of the ICTR also used a similar test for the concurrence of crimes and reached a similar conclusion in the Kayishema & Ruzindana case by finding that ‘it is only acceptable to convict an accused of two or more offences in relation to the same set of facts in the following circumstances: (1) where offences have differing elements or (2) where the laws in question protect differing social interests’.Footnote ¹⁸⁰

6. 20. Judge Tafazzal H. Khan, the dissenting judge in the Kayishema & Ruzindana case,Footnote ¹⁸¹ stressed the need for charges and convictions to reflect the total culpability of the accused rather than the distinct elements of cumulative crimes by finding that:

   What must be punished is culpable conduct; this principle applies to situations where the conduct offends two or more crimes, whether or not the factual situation also satisfies the distinct elements of the two or more crimes, as provenFootnote ¹⁸² … where the culpable conduct was part of a widespread and systematic attack specifically against civilians, to record a conviction for genocide alone does not reflect the totality of the accused’s culpable conduct.Footnote ¹⁸³

7. 21. In assessing the tenability of cumulative charging and convictions, the ICTR Trial Chamber in Musema adopted Judge Khan’s reasoning regarding cumulative charging.Footnote ¹⁸⁴ Thus, Judge Khan’s reasoning was used to assess the legality and scope of the application of cumulative charges and convictions in Musema, and cannot be regarded as obiter dicta: his opinion has been transformed into ratio decidendi, which has guided subsequent cases within the ICTR.

8. 22. The ICTY and ICTR case law demonstrates the development of the criteria for cumulative charging but does not set a legally binding precedent for this Chamber. These cases, however, clarify the legality of cumulative charging in international criminal law and provide authoritative and persuasive reasoning for accepting cumulative charges. Moreover, the Rome Statute does not provide any contrary direction; thus the interpretations of the ICTY and ICTR will be considered in this Chamber’s evaluation of the cumulative charges submitted by the Prosecutor in accordance with Article 21 of the Statute.

9. 23. The drafters of the ICC Elements of Crimes (EoC) also foresaw the likelihood of cumulative charging based on the same factual conduct.Footnote ¹⁸⁵ The general introduction of the EoC stipulates that ‘a particular conduct may constitute one or more crimes’.Footnote ¹⁸⁶ However, the general introduction of the EoC is a background and preamble, which is persuasive but not legally binding. The travaux préparatoires and preambular wording are used to aid the interpretation of the rights and duties arising from treaties.Footnote ¹⁸⁷ In this particular case, the preambular wording will guide the Chamber in interpreting the Prosecutor’s submission of cumulative charges for torture (Count 3) and outrages upon personal dignity (Count 5).

10. 24. The Chamber notes that each individual offence enshrined within the Statute has distinct elements and protects different interests. Article 7(1)(f) of the Statute recognises and prohibits ‘torture’, while Article 7(1)(g) of the Statute prohibits ‘rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable gravity’ committed, as crimes against humanity. The Chamber, therefore, further observes that the Statute allows for the prosecution of distinct forms of sexual and gender-based crimes within its provisions. The Chamber holds that the distinct recognition of offences under the Statute demonstrates how these are separate offences that are prohibited to protect different human rights interests.

11. 25. The Chamber gives due regard to the interests that disparate statutory provisions of the Statute are meant to protect. In this case, the prohibition of torture as a crime against humanity aims to protect physical and mental well-being whilst rape as a crime against humanity focuses on physical autonomy and protection from non-consensual violations of bodily autonomy.Footnote ¹⁸⁸

12. 26. In light of the foregoing, notably the guidance provided by the case law from Kayishema & Ruzindana, Musema, and Kupreskic, the preambular wording of the Elements of Crimes, and the Statute itself, the Chamber concludes that it is justified to permit cumulative charging based on the same factual conduct under certain circumstances. The Chamber observes that a criminal act that meets the elements of multiple offences may constitute one or more crimes. The Chamber, therefore, holds that cumulative charging and convictions are acceptable in 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 ¹⁸⁹ As a result, it is generally understood that the Prosecutor is permitted to cumulatively charge offences based on the same criminal conduct.

13. 27. Turning to the case at hand, a full assessment of the culpability of the accused includes recognition of the varied uses of rape to achieve torture (Count 3) and outrages upon dignity (Count 5). The perpetration of torture and outrages upon personal dignity, through the instrument of rape,Footnote ¹⁹⁰ highlights the breadth of uses of sexual and gender-based violence during conflict. The evidence in the case at hand shows that rape can be used to torture (Count 3), humiliate as outrages upon personal dignity (Count 5), and disempower when the power dynamics of rape itself are considered. The Chamber notes that the charges submitted by the Prosecutor categorise the different uses of rape to achieve different ends.

The Principle of Fair Labelling

1. 28. The Chamber notes that the Statute does not directly mention fair labellingFootnote ¹⁹¹ but stipulates the importance of facilitating fair and expeditious trials.Footnote ¹⁹² In the determination of charges, the accused is entitled to a fair hearing with minimum guarantees, including ‘to be informed promptly and in detail of the nature, cause and content of the charge’.Footnote ¹⁹³ The requirement to inform an accused of the charges in specific terms is also confirmed by scholars and cases from national and international courts such as the ICTR.Footnote ¹⁹⁴ The Canadian Supreme Court also directly mentions the importance of labelling and punishing a person as a way to ‘stigmatise’ and attach ‘blameworthiness’ to the accused in a manner proportionate to the conduct of the accused.Footnote ¹⁹⁵ Fair labelling of crimes accurately describes and distinguishes criminal conduct in proportion to blameworthiness.Footnote ¹⁹⁶ Fair labelling is, therefore, important for describing, categorising, and communicating crimes to the accused clearly and fairly in accordance with Article 67(1)(a) of the Statute.

2. 29. The Chamber further notes that Article 21(1)(c) of the Statute provides that general principles from domestic legal systems may be applied by the Court. Fair labelling is a general principle of law in most domestic legal systems because the description, distinguishing, and codification of crimes in domestic criminal codes and laws is an affirmation of fair labelling.Footnote ¹⁹⁷ Scholars such as Zawati confirm the importance of fair labelling of crimes and argue that the objectives of domestic and international criminal law systems are similar and compatible, including fundamental principles such as fair labelling.Footnote ¹⁹⁸ The application of fair labelling within the Chamber’s assessment of the charges brought by the Prosecutor is justified based on principles of fairness in the ICC Statute and the compatibility of general principles between domestic and international criminal law systems.

3. 30. The Chamber notes that cumulative charging is consistent with the legal norm relating to the fair labelling of crimes in international criminal law. This principle of fair labelling requires that ‘distinctions between [the] kinds of offences and degrees of wrongdoing are respected and signalled by the law, and that offences are subdivided and labelled so as to represent fairly the nature and magnitude of the law-breaking’.Footnote ¹⁹⁹ The Chamber further notes that the principle of fair labelling also extends to sentencing and stresses the need for the labelling of a crime to correspond to blameworthiness and proportionality between sentencing and guilt.Footnote ²⁰⁰ Consequently, accurate labelling of crimes and accurate descriptions of the degree of wrongfulness promotes justice for victims and the accused by ensuring the full recognition of harms endured by victims, proportionate punishment to the degree of wrongfulness, and consistency in sentencing and convictions.Footnote ²⁰¹

4. 31. In light of the above, the principle of fair labelling is important because it acknowledges the types and severity of wrongdoing and guarantees the legal recognition of various types of harm. This principle ensures an accurate description of the scope of wrongfulness, communicates reprehensible behaviour to society, recognises various types of harm, and ensures proportionate conviction and sentencing to the degree of wrongfulness.Footnote ²⁰²

5. 32. Fair labelling of crimes also helps to fulfil the Article 21(3) requirement of the application and interpretation of the Statute in light of norms of non-discrimination on grounds such as gender.Footnote ²⁰³ The Chamber notes that fair labelling helps to bring visibility to sexual and gender-based crimes, which have failed to be adjudicated at all, or properly adjudicated, in the past, a situation which the ICC Statute aimed to remedy.Footnote ²⁰⁴ Such recognition also contributes to society’s understanding of the complexity of gendered violence, including its various forms, effects, and severity, which is instrumental in dispelling myths and assumptions about the nature of this violence.

6. 33. The Chamber holds that the principle of fair labelling also demands an accurate and full representation of sexual and gender-based crimes within criminal charges. This approach avoids minimising and/or mischaracterising the experiences of victims of sexual and gender-based crimes and, therefore, contributes to the recognition of cumulative charging and convictions of these crimes.

7. 34. The Chamber further notes that the Court attends to the crimes within its jurisdiction to protect the rights of all persons but also recognises its social function of clarifying the law and reinforcing norms. Addressing sexual and gender-based crimes acknowledges the complexity of these crimes, through the identification of acts that target and exploit gender identities, roles, and expectations, and develops progressive gender norms that could trickle down to domestic criminal justice systems.Footnote ²⁰⁵ The Chamber holds that fair labelling recognises and accurately describes sexual and gender-based violence, including how this violence can be used to achieve various objectives, which could guide domestic criminal justice systems in similar cases.

8. 35. In conclusion, the Chamber holds that recognising torture and outrages upon personal dignity committed through rape as separate crimes fairly labels the types of harm done to victims and gives legal recognition to their lived realities. Therefore, fair labelling also leads to non-discriminatory and gender-sensitive recognition of torture and outrages upon personal dignity. Based on the foregoing, the Chamber deems it necessary to assess the nature and extent of the cumulative charges brought by the Prosecutor in the context of the principle of fair labelling and in accordance with Article 21(3) of the Statute.

Legal Findings of Cumulative Charging of Crimes

1. 36. The Chamber recalls that cumulative charging and convictions are acceptable in international criminal law if the relevant statutory provisions are designed to protect different social interests, each offence has distinct elements, and the charges reflect the total culpability of the accused.Footnote ²⁰⁶ According to Judge Khan in Kayishema & Ruzindana, and as accepted by the majority in Musema, an assessment of charges should be proportionate to the blameworthiness of the accused.Footnote ²⁰⁷ A full assessment of criminal charges must reflect the total culpability of the accused.Footnote ²⁰⁸ The Chamber concurs with these conditions of cumulative charging in international criminal law.

2. 37. The Prosecutor submitted cumulative charges for torture (Count 3) and outrages upon personal dignity (Count 5).Footnote ²⁰⁹ These charges are based on the same factual conduct and are mainly related to acts of rape.Footnote ²¹⁰ The Chamber further notes that the Prosecutor’s request to cumulatively charge acts of torture and outrages upon personal dignity allegedly perpetrated through acts of rapeFootnote ²¹¹ is vital for adhering to the principle of fair labelling.

3. 38. The Chamber recalls that the legal requirement to fairly and accurately label crimes is satisfied if criminal charges are proportionate to the blameworthiness of the accused and the severity of the criminal conduct.Footnote ²¹² Criminal charges must reflect the facts and the severity of criminal conduct. Acts of rape that meet the elements of torture and outrages upon personal dignity constitute forms of torture and outrages upon personal dignity that ought to be represented as such in the criminal charges against the accused.

4. 39. Based on the foregoing, the Chamber holds that cumulative charging of torture (Count 3) and outrages upon personal dignity (Count 5), allows for the recognition of the full culpability of the accused and protects separate interests enshrined in distinct provisions of the Statute, including crimes not directly categorised as sexual and gender-based crimes. Therefore, the Chamber must consider whether the conditions for cumulative charging are met in the case at hand.

5. 40. Despite being allegedly carried out through acts of rape, the charges brought by the Prosecutor are different crimes from rape as they have elements distinct from the crime of rape.Footnote ²¹³ The conditions for cumulative charging require that the charges brought by the Prosecutor based on the same factual conduct, in this case of rape, contain distinct elements.Footnote ²¹⁴ The Chamber will assess whether Counts 3 and 5 should be confirmed as torture and outrages upon personal dignity respectively. This assessment will analyse whether these crimes have materially different elements, are conceptually different, and protect different social values.

For These Reasons, the Chamber

1. (a) DECIDES to adjourn the hearing;

2. (b) REQUESTS the Prosecutor to consider submitting to the Chamber no later than 31 September 2009 an amended document containing additional evidence, including witness statements, and an in-depth analysis chart on the basis of any new evidence and evidence already submitted to the Chamber;

3. (c) INVITES the Defence to respond to the amended document, with a written submission not exceeding thirty pages, no later than 31 October 2009;

4. (d) INVITES the legal representatives for victims to submit written observations not exceeding thirty pages, no later than 30 October 2009;

5. (e) DECIDES that the sixty-day period required for the issuance of the decision on the confirmation of charges will commence anew as of the date of receipt of the last written submission.

Done in both English and French, the English version being authoritative.

Judge Loyce Mrewa

Gravity

1. 5. One of the principal considerations in the determination of a sentence, as specified in Article 78(1), is the gravity of the crime.Footnote ²⁴³ Consistent with jurisprudence from the International Criminal Tribunal for the former Yugoslavia (ICTY), when assessing the gravity of a crime within the context of persons convicted on the basis of command responsibility, two factors must be considered:

   1. 1. the gravity of the underlying crime committed by the subordinates; and

   2. 2. the gravity of the convicted person’s own conduct in failing to prevent or repress the underlying crimes.Footnote ²⁴⁴

2. 6. Gravity is generally assessed in abstracto, by analysing the legal elements of the crime and the mode of liability in general terms, and in concreto, by assessing the particular circumstances of the case, the gravity of crimes committed by subordinates and the convicted person’s culpability.Footnote ²⁴⁵ Factors that are considered in relation to the gravity of a crime cannot be ‘double-counted’ and taken into account as aggravating circumstances for the same crime, and vice versa.Footnote ²⁴⁶

Pillaging

1. 8. The Chamber convicted Mr Bemba of the war crime of pillaging on the basis that pillaging was committed by MLC forces against civilians in the CAR with grave consequences for the victims.Footnote ²⁴⁷

Concluding Remarks on the Crime of Pillaging

1. 47. The Chamber has identified and assessed the factors it considers relevant for determining a sentence for the crime of pillaging. In doing so, it has explored the far-reaching consequences this crime has on victims and their families, many of whom have been unable to rebuild their lives as a direct result. In particular, the Chamber has considered the harm pillaging causes, from a financial and psychological perspective, and the intergenerational and gendered effect of pillaging.

2. 48. The Chamber finds that women and children are disproportionately impacted by the crime of pillaging. It impedes their access to education, which is critical given the socio-economic context and poverty rates in the CAR, and consequently impacts their potential for independence, agency, and earnings. Further, many women and girls, but also some men, are also victims of rape. This has a compounding impact on the trauma they endure, being victims of multiple crimes. Given the cultural stigma and sensitivity associated with rape, the Chamber is particularly aware of the indirect harm pillaging has on women and girls, particularly where they have to rely on family to pay for the ongoing medical treatment that is required as a result of the rapes. In the Chamber’s view, it is important to employ such a gendered lens when assessing the harm caused by pillaging in order to more readily reflect the lived experiences of the victims.

3. 49. The Chamber finds these were acts deliberately targeted against vulnerable, defenceless civilians, including children, women, and the elderly. Their vulnerability was further compounded by the circumstances in which the crimes occurred. The pillaging of personal items and civilian property occurred in the context of a military operation, which forced many civilians to flee their home and seek safety elsewhere. It was committed by armed MLC soldiers, and accompanied by other serious crimes, including rape and murder.

4. 50. The Chamber found that as a result of the systematic pillaging of civilians, and their homes and businesses, the victims were stripped of their belongings and resources. Their houses were also often destroyed following the pillage. Consequently, many victims were forced to live in poverty, which continues today. The Chamber finds that, while each victim has their own lived experience, the commonality between them is the overwhelming losses they suffered due to the pillaging. This has had multidimensional and enduring consequences on their lives and those of their families. Viewed within the context of the CAR, with its socio-economic challenges, it is evident that the crime of pillaging has a significant impact on vulnerable civilians, with many living an existence of prolonged poverty.

5. 51. In view of the above, the Chamber finds the war crime of pillaging is a crime of serious gravity. The Chamber also finds that two aggravating circumstances apply to the crime of pillaging; it was committed:

   1. (i) against particularly defenceless victims and

   2. (ii) with particular cruelty.

6. 52. On the basis of the above, coupled with Mr Bemba’s ongoing failure to prevent or repress the crimes committed by his subordinates, the Chamber sentences Mr Bemba to sixteen years of imprisonment for the crime of pillaging as a war crime.

Judge Kirsten M. F. Keith

Overview

1. 2. The third ground of appeal concerns Mr Bemba’s submission that the Trial Chamber erred when it found that he was responsible as a commander, pursuant to Article 28(a) of the Rome Statute, for crimes committed by troops under his control during the 2002–2003 operations in the Central African Republic (CAR Operation) – those being the crimes against humanity of murder and rape, and the war crimes of murder, rape, and pillaging. Mr Bemba was, at all relevant times, the president of the Mouvement de libération du Congo (MLC), a political party founded by him, and the commander-in-chief of its military branch.

2. 3. As outlined in Article 28(a), command responsibility for crimes committed by subordinates comprises three elements: first, the commander had effective command and control, or authority and control, over those subordinates;Footnote ³²⁰ second, the commander knew, or should have known, that those forces were committing or about to commit crimes within the jurisdiction of this Court;Footnote ³²¹ and third, the commander 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 ³²²

3. 4. The Appeals Chamber accepts the reasoning and conclusions of the Trial Chamber with respect to the first and second of these elements. It will therefore limit its assessment to arguments concerning the third element and Mr Bemba’s submissions in relation to the Trial Chamber’s finding that he failed to take all necessary and reasonable measures within his power.Footnote ³²³

4. 5. The Appeals Chamber considers that the first of Mr Bemba’s five submissions, being that the Trial Chamber failed to apply the correct legal standard, is the decisive issue and will limit its considerations to this point. Because the underlying rationale for the mode of liability contained in Article 28(a) of the Rome Statute is critical to a correct interpretation of the relevant legal standard and its application, the following reasoning will commence with an exposition of how the concept of protection under IHL informs the doctrine of command responsibility. The Appeals Chamber will then outline the correct legal standard and apply this to the facts in Mr Bemba’s case.

The Protection Rationale Underlying Command Responsibility

The Correct Legal Standard: Article 28(a)(ii)

1. 14. Mr Bemba argues that the Trial Chamber failed to assess his conduct in relation to the obligation to take all necessary and reasonable measures against the correct legal standard. The Trial Chamber found that whether or not a commander failed to take all necessary and reasonable measures should be established on a ‘case-by-case basis’, focusing on the ‘material power’ of the commander.Footnote ³³⁸ Mr Bemba submits that a commander need only take such measures that are ‘within his material possibility’Footnote ³³⁹ and that his conduct should be judged by a standard of what measures were ‘feasible and practicable at that time’.Footnote ³⁴⁰

2. 15. In determining the correct legal standard to be applied, the Appeals Chamber notes that Article 21 of the Rome Statute stipulates the sources of law that the Court shall apply. The first of these is the Statute itself, as well as the Elements of Crimes and Rules of Procedure and Evidence.Footnote ³⁴¹ In the second place, where appropriate, the Court shall apply relevant treaties, rules, and principles of international law including the established principles of IHL. The significance of this body of law has been discussed above and will be referred to throughout the following section of the judgment as relevant. Furthermore, Article 21(3) establishes a positive obligation on the Court to apply a gender-sensitive and intersectional interpretation of the law consistent with internationally recognised human rights.

3. 16. As per the general rules of treaty interpretation, construing the provisions of Article 28(a)(ii) must commence with a textual interpretation, in accordance with the ordinary meaning of the words in their context and in light of the object and purpose of the Rome Statute.Footnote ³⁴² The drafting history of the relevant provision may thereafter be considered in order to confirm the meaning resulting from the textual interpretation if required.Footnote ³⁴³

4. 17. The text of Article 28(a)(ii) outlines the third criterion that must be satisfied before a military commander with effective control of his or her troops can be criminally responsible for crimes committed by those troops (the first criterion requires effective control and the second criterion requires actual or constructive knowledge). The text of the third criterion takes the following form: ‘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.’ The following inquiry shall consider firstly the phrase ‘all necessary and reasonable measures within his or her power’, and subsequently the three distinct obligations to ‘prevent’, ‘repress’, or ‘submit’.

Assessment of Measures Taken by Mr Bemba

Conclusion

1. 52. For the reasons outlined above, the Appeals Chamber finds that the Trial Chamber erred in referring to irrelevant considerations of outcome and motive in its reasoning. However, the weight given to these considerations in determining whether Mr Bemba failed to take all necessary and reasonable measures was limited and does not materially affect the findings or decision of the Trial Chamber.

2. 53. In conclusion, the Appeals Chamber concurs with the Trial Chamber – but distinguishes its reasoning – in finding that Mr Bemba failed to take all necessary and reasonable measures within his power to prevent or repress the commission of crimes by his subordinates during the 2002–2003 CAR Operation, or to submit the matter to the competent authorities. The third ground of appeal is therefore dismissed.

Judge Suzanne Varrall and Judge Sarah Williams

Defence for Yekatom

1. 9. As a preliminary matter, the Chamber notes that the corrected version of the Yekatom Response, addressed to Pre-Trial Chamber II, was received by the Registry on 27 May 2020, at 15:51 hours, after the time limit for responses to the Request had expired. The defence for Yekatom did not request an extension of time prior to the expiration of the deadline. Accordingly, the Chamber will not consider the Yekatom Response.

Prosecutor

1. 10. The Prosecutor submits that ‘credible evidence of rape and sexual slavery allegedly committed by Anti-Balaka elements subordinate to’ Yekatom, in the form of witness statements, was uncovered ‘[d]uring the course of finalising [the] investigation into the conscription, enlistment, and use of children under the age of 15 years’. Accordingly, charges of rape and sexual slavery as war crimes should be added by amending the charges confirmed against Yekatom, pursuant to Article 61(9) of the Statute.

2. 11. In the view of the Prosecutor, these additional charges are ‘fully substantiated and more fully reflect [Yekatom’s] alleged culpability’; in light of the ‘seriousness and importance’ of these charges, the ‘proposed amendment is in the interests of justice’.

3. 12. The Prosecutor submits that ‘the requested amendment is timely, justified, and entails no unfair prejudice to’ Yekatom because: (i) ‘no trial date has as yet been set and … an actual trial is unlikely to commence soon’; (ii) the additional charges, being ‘predicated on sufficient evidence’, are ‘adequately substantiated’ and feature ‘among the Rome Statute’s most serious’, which renders them ‘important to the Court’s duty to establish the truth and to ensure the Trial Chamber’s “full consideration of the relevant issues”’; (iii) the Prosecutor ‘acted with reasonable diligence in pursuing the investigation and the [a]dditional [c]harges’, including with regard to the gathering of the relevant evidence; and (iv) the ‘amendment of charges … would not unfairly prejudice’ Yekatom, nor would the Prosecutor ‘gain any tactical advantage’, since the defence would ‘have ample opportunity to prepare’ and there would be ‘no clear impact on the expeditious conduct of a prospective trial’.

4. 13. Should the Request be granted, the Prosecutor also ‘requests that the Chamber schedule a date for the confirmation hearing on the [a]dditional [c]harges for as soon as practicable’. Further particulars of the Prosecutor’s argument are indicated below.

Common Legal Representatives of the Former Child Soldiers and Common Legal Representatives of the Victims of Other Crimes (CLRV)

1. 14. In the view of the CLRV, the Request should be granted in its entirety, based inter alia on the following submissions: (i) it is in the interest of the victims that the proposed charges are added in order for them to have effective ‘access to justice, recognition of their victimisation and eventually the possibility to claim reparations’; (ii) the prosecution only received credible information on conflict-related sexual violence in mid-July 2019, which did not provide sufficient time for it to gather and integrate the evidence into the Document Containing the Charges (DCC); (iii) this timing required investigation ‘necessary to establish the truth … of grave crimes’ beyond the submission of the DCC and the issuance of the Decision on the Confirmation of Charges; (iv) this investigation faced ‘practical and logistical constraints’ which explained the timing of the current request; (v) adding new charges of limited scope at this juncture ‘would not negatively impact the fairness and expeditiousness of the proceedings’, given that ‘the date of the commencement of the trial is yet to be set’; (vi) concerns about the lack of charges related to gender-based crimes had already been expressed by the CLRV in their 9 July 2019 submissions; (vii) the Chamber must assess and balance the rights of victims, which include consideration of the full extent of their victimisation, as well as those of the accused; and (viii) it is not satisfactory to have a speedy trial ‘if said trial fails to uncover the truth about the responsibility of those involved’.

Importance of the Additional Allegations to a Complete Understanding of the Prosecution’s Case and a Full Consideration of the Relevant Issues

1. 22. The Prosecutor submits that permitting the requested amendment to add charges against Yekatom of rape and sexual slavery as war crimes would lead to a more complete understanding of the case against the accused: ‘The Additional Charges are important to the Court’s duty to establish the truth and to ensure the Trial Chamber’s “full consideration of the relevant issues”.’Footnote ⁴⁰¹

2. 23. The Appeals Chamber has recognised that ‘[t]he duty to establish the truth is not limited to the time before the confirmation hearing. Therefore, the Prosecutor must be allowed to continue his investigation beyond the confirmation hearing, if this is necessary in order to establish the truth’.Footnote ⁴⁰² The Appeals Chamber identified when such situations may be necessary: when a failure to do so would ‘deprive the Court of significant and relevant evidence … particularly in situations where the ongoing nature of the conflict results in more compelling evidence becoming available for the first time after the confirmation hearing’.Footnote ⁴⁰³

3. 24. This Court has also recognised that the ICC’s ‘Statute and the Rules accord a special status to sexual violence crimes, crimes against children, and the victims thereof’ and that ‘[d]uring the drafting process of the Rome Statute, the especially grave nature and consequences of sexual violence crimes … were recognised’.Footnote ⁴⁰⁴ In the Ntaganda case, Trial Chamber VI observed, citing the ICTY trial chamber in Kunarac et al., that ‘rape is one of the worst sufferings a human being can inflict upon another’.Footnote ⁴⁰⁵ Citing Mucić et al., Trial Chamber VI also considered ‘[t]he rape of any person to be a despicable act which strikes at the very core of human dignity and physical integrity’.Footnote ⁴⁰⁶ Trial Chamber VI concluded that rape and sexual slavery as crimes against humanity and war crimes are grave crimes, ultimately sentencing Ntaganda to seventeen and fourteen years’ imprisonment respectively.Footnote ⁴⁰⁷ Other international criminal tribunals have come to the same conclusion, with Trial Chamber II of the Special Court for Sierra Leone categorising these acts as ‘of the utmost gravity’.Footnote ⁴⁰⁸

4. 25. The Prosecutor is requesting the addition of charges for the war crimes of rape and sexual slavery. These 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.

5. 26. Given the gravity of the proposed additional charges, they may provide ‘significant and relevant evidence’ as well as context for the previously confirmed charges. Therefore the requirement to demonstrate the importance of the additional allegations to a complete understanding of the prosecution’s case and a full consideration of the relevant issues has been met.

Reasonable Diligence of the Prosecution in Bringing the Additional Charges, including the Reasonableness of Continuing Investigations after the Confirmation of Charges and whether the Request Is Supported and Justified

1. 27. The ‘underlying rationale [of Article 61(9)] is that continued investigation should be related only to such essential pieces of evidence which were not known or available to the Office of the Prosecutor prior to the confirmation hearing or could not have been collected for any other reason, except at the later stage’.Footnote ⁴⁰⁹ The reasons for such an investigation must be properly justified.Footnote ⁴¹⁰

2. 28. In June 2019, the prosecution indicated that it was ‘continu[ing] to investigate the commission of sexual and gender based crimes … and may seek the confirmation of such charges, should the evidence obtained satisfy the requisite threshold’.Footnote ⁴¹¹ It received relevant information relating to sexual violence in mid-July 2019.Footnote ⁴¹² The DCC was due on 19 August 2019. In order to incorporate this information into the DCC, the prosecution would have needed to organise and undertake missions (involving travel arrangements for all participants, including the witnesses), assess any risks to the witnesses based on the evidence provided and their personal circumstances before disclosure could take place, and translate the statements into French for the purposes of the Rules of Procedure and Evidence and Rules of the Court in order to rely on them as evidence at the confirmation hearing – all within one month.Footnote ⁴¹³ There was therefore not sufficient time.Footnote ⁴¹⁴ Additionally, the prosecution had earlier sought and obtained a delay in the Confirmation of Charges hearingFootnote ⁴¹⁵ and it was not feasible to request a further delay.

3. 29. The prosecution sought to interview two victims. The prosecution alleges that the first individual, a victim of rape and sexual slavery, was deprived of her liberty while with the Anti-Balaka, told that she ‘had to do anything they ordered [her] to do’, and was raped under threat of death by an intermittently armed direct perpetrator.Footnote ⁴¹⁶ The prosecution alleges that a second individual, another victim of rape and sexual slavery, was threatened by the direct perpetrator and deprived of her liberty.Footnote ⁴¹⁷

4. 30. The prosecution indicates that the first individual was screened in late August 2019, and interviewed within three weeks, in September 2019, once the presence of a psychosocial expert was ensured.Footnote ⁴¹⁸ The prosecution indicates that it faced considerable difficulties initially in contacting the second individual.Footnote ⁴¹⁹ The date for her first interview was rescheduled to late November 2019 due to the unavailability of a psychosocial expert.Footnote ⁴²⁰ The prosecution conducted a second interview in January 2020 to obtain ‘additional details and clarifications in order to determine whether to seek the amendment of charges’.Footnote ⁴²¹ The prosecution submits that witness-related work was hampered by the considerable budget restraints in place at the Court during the last quarter of 2019, which permitted only a single investigative team to conduct field work in the Central African Republic.Footnote ⁴²² The prosecution viewed the evidence of the first and second individuals as interconnected,Footnote ⁴²³ which is why it secured evidence from both before proceeding to an internal evidence review, which concluded on 27 March 2020, and the filing of its motion to add additional charges on 31 March 2020.Footnote ⁴²⁴

5. 31. The time period between the prosecution’s initial receipt of relevant information on sexual violence and issuance of the request to amend the charges was 8.5 months. Within this time period, the prosecution only had the evidence for both charges in hand as of January 2020.Footnote ⁴²⁵

6. 32. This delayed surfacing of the evidence on conflict-related sexual violence, and the difficulties in securing such evidence and putting into place protective measures for victims, are not unusual. There are inherent challenges to collecting credible evidence of conflict-related sexual violence which have an impact upon the speed at which such evidence can be uncovered, considered, and integrated into prosecution cases.Footnote ⁴²⁶ Survivors may be reluctant to reveal their victimisation to investigators because they face threats to their security and well-being or societal, cultural, and other barriers such as stigmatisation and ostracism.Footnote ⁴²⁷ Survivors may be in a precarious position, affiliated with or living in a community with those who perpetrated the sexual violence against them. Survivors may be dealing with trauma, fatigue, health conditions, insufficient support mechanisms within their families and communities for survivors of sexual violence, and lack of access to meaningful victim protection.Footnote ⁴²⁸ They may therefore need to be interviewed more than once in order to build trust and secure further details.Footnote ⁴²⁹ Investigators may not have access to survivors or to secure private locations in which to interview survivors.Footnote ⁴³⁰ All of these difficulties can lead to the delayed reporting of sexual violence, as well as delays once evidence of sexual violence initially comes to light. Investigators and prosecutors have responsibilities for carrying out investigation of conflict-related sexual violence in a measured, careful manner to avoid harming victims, which takes time.Footnote ⁴³¹

7. 33. Indeed, in Al-Hassan the Pre-Trial Chamber indicated that the prosecution cannot be reproached for decisions that belong solely to the witnesses, such as their hesitance to cooperate and to give evidence.Footnote ⁴³²

8. 34. Given the prosecution’s explanation of the reasons for the timing of the investigation of the alleged incidents of sexual violence, and considering the inherent difficulties in investigating conflict-related sexual violence, the Chamber finds that it was reasonable for the prosecution to continue investigating after the Decision on the Confirmation of Charges, and that the timeline indicates that the prosecution was reasonably diligent in bringing its motion to amend the charges.

Whether the Adjudication of the Additional Charges Would Cause Undue Prejudice to the Rights of the Accused

1. 35. In considering whether the adjudication of the additional proposed charges would cause undue prejudice to the rights of the accused, this Chamber must consider: the ability of the accused to prepare a timely defence to the additional charges, and any delay the additional charges may cause to the proceedings, including to the duration of pre-trial custody.Footnote ⁴³³ These two considerations are interrelated: the granting of a request under Article 61(9) will naturally cause some disruption and delay as the defence would need to: review the information disclosed by the prosecution, conduct its own investigation, potentially adjust its strategy; and respond to the charges in an additional Confirmation of Charges hearing. It is therefore important to consider the potential extent of such a delay and whether it would amount to undue delay.

2. 36. In Al Hassan, the Pre-Trial Chamber agreed to modify the existing charges of sexual slavery, rape, persecution, outrages on personal dignity, and other inhumane acts (forced marriage) in order to include additional facts on ten charges involving twelve victims.Footnote ⁴³⁴ The Chamber indicated that these additions were not so significant that they would delay the start of the trial and, although they would impact on the way the defence prepared for trial, this relatively small impact was outweighed by the necessary search for the truth by the prosecution.Footnote ⁴³⁵ The current case involves two new charges involving two victims, and is thus comparable.

3. 37. In Ruto and Sang, the Pre-Trial Chamber stated that an amendment done well in advance of the scheduled trial respected ‘the fairness of the proceedings, their expeditiousness and respect for the rights of the accused to receive a proper trial’.Footnote ⁴³⁶ The current case is also comparable, as the trial date has not been scheduled and is likely to be affected by the ongoing COVID-19 restrictions. Thus, a grant of the requested amendment sufficiently in advance of the trial can preserve the accused’s rights.

4. 38. In Ngaïssona, this Chamber found that granting the requested amendment would not satisfy the accused’s fair trial rights. That decision can be distinguished from the current case because, in Ngaïssona, this Chamber found that the prosecution’s request to amend the charges to include a charge of rape was aimed at ‘reintroduc[ing] non-confirmed charges for which evidence was lacking pursuant to a supplemental investigation’.Footnote ⁴³⁷ In contrast, the current case considers entirely new charges with new evidence justified by different reasons.

5. 39. In the view of this Chamber, the extent of any delay is likely to be minimal for two reasons. First, the proposed charges are limited both in scope and time, and are connected to existing charges. The prosecution has already completed its investigation and therefore only the defence would be required to undertake an additional investigation. This additional investigation would be narrow in focus. Second, the proceedings in this case are at an early stage. No trial date has been set and the trial is unlikely to happen in the near future due to COVID-19-related restrictions.Footnote ⁴³⁸ Indeed, in this situation, the prosecution would be exercising its recourse to Article 61(9) ‘under circumstances and conditions which would not impact the … trial’.Footnote ⁴³⁹

6. 40. Even if the trial date is likely to be set in the near future, a short delay would not be undue. For example, in the ICTY, a delay of seven months was not considered undue and was deemed to still afford the accused a fair trial, even though the trial date had already been set.Footnote ⁴⁴⁰

7. 41. Additionally, the effects of any delay could be substantially mitigated through the disclosure of witness statements to the defence as ‘attorneys-eyes-only’, to allow the defence immediate access to the evidence while still protecting the security of the witnesses.Footnote ⁴⁴¹ Additionally or alternatively, witness statements could be disclosed to the accused and the CLRV in the form of extracts or excerpts, to the extent the security situation allows. In addition, any delays caused by such an amendment could also be mitigated by subtracting time in custody from the sentence in the event of a conviction, in accordance with Article 78(2) of the Statute.

8. 42. In sum, any potential delay would not be undue and could be mitigated.

9. 43. In light of the above, and after careful consideration of the rights of the accused, the Chamber finds that any potential disruption and delay caused to the defence by the granting of the prosecution’s Article 61(9) request may be counterbalanced by these mitigating steps: (1) disclosure of relevant prosecution witness statements to the defence as ‘attorneys-eyes-only’ within five days of the release of this decision; (2) disclosure of witness statements to the accused and the CLRV in the form of key extracts or excerpts, to the extent the security situation allows, within ten days; and (3) subtracting time in custody from the sentence in the event of a conviction, in accordance with Article 78(2).

10. 44. In conclusion, this Chamber finds that the three factors identified in paragraph 20 above have been fulfilled.

Prosecutor v. Simone Gbagbo, Decision of the Prosecutor’s Application Pursuant to Article 58 for a Warrant of Arrest against Simone Gbagbo

Judge Natalie Hodgson’s rewriting appears to have two primary objectives, the first less explicit than the second. First, her revisions to the original try to bring order and logic to an ICC decision. She uses titles that structure the corpus text of the decision and organises the questions the court must resolve. Her drafting closely follows the language and order of appearance of the Rome Statute’s diverse criteria about what the Court must be convinced of at this stage of the proceedings. Her initiative suggests that feminist rewriting also comprises the general objective of communication and clarity. I welcome the suggestion for clarity, considering how gender, social class, and other structural circumstances and factors have for long restrained access to international law, to its education, its professions, and its intellectual and professional communities. Those less familiar with international law, the general public, civil society activists, students, and others should be provided with more pedagogical and approachable legal instruments, as Hodgson seems to suggest. Substantially, Judge Hodgson’s decision reproduces the findings of the Pre-Trial Chamber on jurisdiction and admissibility.

The second objective of this feminist rewriting relates to the qualification of Simone Gbagbo’s role in the examination of the ‘reasonable grounds’ test. The rewritten decision introduces supplementary information on Simone Gbagbo, thereby altering the way in which her personality, political importance, and agency are presented. In contrast to the original decision in which Simone Gbagbo is predominantly and repeatedly represented as the wife of Laurent Gbagbo, as if an auxiliary to ‘her husband’,Footnote ⁴ the rewritten judgment mentions the circumstance that Simone Gbagbo is married to Laurent Gbagbo only once. At a later part of the decision, Judge Hodgson refers to Simone Gbagbo’s ‘relationship with Laurent Gbagbo’, without specifying it. The fact that Laurent Gbagbo was, at the time of the alleged crimes, the president or the ex-president of Côte d’Ivoire, is noted only once.

In contrast to framing Simone Gbagbo in the Pre-Trial Chamber (para. 10) as the wife who was ideologically and professionally very close to her husband, the rewritten decision presents an inner circle ‘comprising individuals occupying formal and informal positions in Mr Gbagbo’s government’ (para. 24), of which Simone Gbagbo is a member. Under the heading ‘Whether There Are Reasonable Grounds to Believe That Ms Gbagbo Is Criminally Responsible for the Crimes Alleged by the Prosecutor’, Judge Hodgson’s decision introduces specific reasons why Simone Gbagbo should be considered an indirect co-perpetrator under Article 25(3)(a) of the Statute. The image that appears is not that of a wife following the president-husband, who even (mischievously?) ‘acted as an alter ego for her husband’ (PTC para. 10) but a power-couple of two independent, notable, long-term politicians at the centre of the inner circle of the Côte d’Ivoire government.

The rewritten decision details, for example, that ‘Ms Gbagbo had her own cabinet within the presidency with its own staff. In a country where women are significantly underrepresented in political positions, Ms Gbagbo was an active decision maker and possessed significant political power’ (para. 34). That power has a history in ‘her long political career’, including the fact that she was a ‘founding member’ of the Front populaire ivorien (para. 35). Thereafter, Judge Hodgson refers to elements concerning meetings, military equipment, and orders given to militias. These matters were also addressed in the original decision but Judge Hodgson emphasises them differently to suggest that Simone Gbagbo was able to ‘exercise joint control over the crimes’ (para. 38), ‘made a co-ordinated and essential contribution to the crime’ (para. 39), and ‘acted with the necessary degree of intent and knowledge in performing her role within the common plan’ (para. 40).

Judge Hodgson provides a more substantiated analysis of Simone Gbagbo’s role than in the original judgment by demonstrating that the legal requirements for issuing a warrant of arrest are independent (of ‘the husband’). She explains how Simone Gbagbo’s arrest warrant depends, in accordance with Article 58(1) and in addition to the reasonable grounds test addressed above, on whether the arrest is necessary to: (i) ensure her appearance before the Court; (ii) ensure that she does not use her connections and resources to obstruct or endanger the investigation; and (iii) prevent the further commission of crimes within the jurisdiction of the Court. The rewritten decision proceeds to analyse these aspects individually, relying on ICC case law, commenting in paragraph 44 on how:

The decision then replies to these requirements, stating how Simone Gbagbo has a ‘long political history and strong political connections throughout Côte d’Ivoire’ and that ‘her supporters have called for her release and oppose her transfer to the ICC’ (para. 45). On international connections, the decision details that Simone Gbagbo ‘has studied abroad in Senegal and France, as well as having completed multiple international training courses’ (para. 46). The decision suggests that these connections ‘could assist her to abscond’ (para. 46). Furthermore, Judge Hodgson’s decision notes that ‘the Prosecutor has provided evidence that Ms Gbagbo has access to significant financial resources’ (para. 46), and that her ‘connection to high-profile members of the former government and her relationship with Mr Gbagbo might also assist her to access relevant contacts and resources in order to abscond’ (para. 46).

To strengthen the arrest warrant further, Judge Hodgson’s decision introduces additional information on the situation in Côte d’Ivoire at the moment of the consideration of the arrest warrant. It refers to allegations about previous concealing of ‘crimes committed by members of the inner circle’ (para. 55), and provides information on how ‘supporters of Ms Gbagbo are currently discussing strategies for regaining political power in Côte d’Ivoire. The pro-Gbagbo forces that remain loyal to Ms Gbagbo and the other members of the inner circle continue to have access to significant material resources, including weapons’ (para. 49).

The rewriting culminates in a section entitled ‘Concluding Comments’ that starts with the following statement: ‘Ms Gbagbo is the first woman to be the subject of an application for an arrest warrant before this Court’ (para. 51). As such a section is not habitual in ICC or other international criminal court decisions, it somewhat diminishes the impression of reading a ‘real’ decision of the ICC Pre-Trial Chamber. But it certainly allows Judge Hodgson to be more explicit about her message. After explaining – in a scholarly manner – how women’s general underrepresentation in politics and the military has meant the rarity of their qualification as suspects or accused in international criminal trials, the rewriting returns to a more judge-like voice: ‘The issue before this Court is not whether Ms Gbagbo’s conduct adhered to the traditional gender roles that woman are expected to perform, or whether Ms Gbagbo should be punished for her relationship with her husband, but rather the extent to which Ms Gbagbo herself is or is not guilty of perpetrating international crimes’ (para. 53, footnote omitted).