Conflict-Related Sexual Violence and International Criminal Justice: Challenges and Opportunities in the Fight against Impunity

Introduction

Few weeks after the start of the war in Ukraine, numerous reports emerged reporting rape at the hands of Russian forces, even suggesting that these acts may have been widespread.¹ Should investigations prove these reports true, the events in Ukraine will join a long history of armed conflict involving sexual violence. While the scope and form of conflict-related sexual violence varies across the globe depending on the respective conflict dynamics, the social context and the characteristics of the armed group or military organization involved, the demand for criminal justice responses to these atrocities – often unmet – looms large. While the International Criminal Court (ICC) as well as other international criminal tribunals have, clearly, been and continue to be important actors in enhancing accountability for conflict-related sexual violence, the domestic level has gained increasing relevance in recent years. Nevertheless, challenges in the prosecution of conflict-related sexual violence remain at both levels. In addition, alternatives to traditional criminal justice approaches emerge that may offer a more holistic response to armed conflicts’ violent past.

Conflict-related sexual violence and international criminal justice

For a long time, conflict-related sexual violence has received little attention in international criminal law and was, instead, condoned as collateral damage or unavoidable byproduct of armed conflict. Hence, the warranted critique of impunity became a buzzword to address the systemic problems underlying this historical inaction. The post-World War II Nuremberg and Tokyo Tribunals failed to adequately prosecute conflict-related sexual violence. In the 1990s, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) slowly started to build an important body of international jurisprudence, recognizing rape and other forms of sexual violence as war crimes, crimes against humanity and genocide.² These two ad-hoc Tribunals were the first to consider sexual violence in the ambit of international criminal justice. They were followed by the permanent ICC, established in 2002, that has jurisdiction over a wide range of sexual crimes as acts of genocide, war crimes and crimes against humanity – namely rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization as well as any other form of sexual violence of comparable gravity.³ Importantly, these crimes are formulated in a gender-neutral way, thus criminalizing the respective acts independently of the victim’s or the perpetrator’s gender. With that, for the first time in history, a comprehensive codification of conduct related to sexual violence has been adopted. Based on the precedents established by the ICTY and ICTR, but also the later established Special Court for Sierra Leone (SCSL) as well as the Extraordinary Chambers in the Courts of Cambodia (ECCC), the ICC can resort to a rich body of jurisprudence and prosecutorial experience when dealing with conflict-related sexual violence. Importantly, the SCSL and ECCC were pivotal in prosecuting sexual slavery and forced marriage, that underline the often gendered nature of sexual violence.⁴ This growing judicial practice has shown that sexual violence can be linked to an armed conflict in various forms, following different patterns and driving factors. It can be committed by way of individual attacks but also as part of a large-scale campaign by conflict actors, even being used as a weapon of war.

The awareness for conflict-related sexual violence in international criminal law has been accompanied by an increasing attention at the international policy level. Starting with the landmark United Nations Security Council Resolution 1325 in October 2000, the Women, Peace and Security Agenda has repeatedly emphasized that wartime sexual violence is a threat to international peace and security. Importantly, the Agenda has recognized the often strategic use of conflict-related sexual violence and dispelled the myth that sexual violence is only committed against women.⁵ As part of the Agenda, the UN Security Council created a Team of Experts on the Rule of Law and Sexual Violence in Conflict in 2009 to enhance criminal accountability and end impunity. And yet, despite this remarkable evolution that has successfully placed conflict-related sexual violence at the center of international attention within few decades, shortcomings remain in ensuring accountability of these crimes.

The International Criminal Court

As with any other international crime, it is indispensable to prosecute sexual violence from the very beginning as what it is, namely outrageous criminal behavior, in order to understand the violent context in which it occurs and to fully recognize the harm it causes. This warrants first and foremost the proper application of the available legal provisions.

When looking at the early years of the ICC’s practice, it becomes evident that the Court has not paid as much attention to sexual violence as one might have expected in light of the previous developments mentioned above.⁶ This situation was owed in particular to a lack of prosecutorial prioritization and suitable charging strategies. For instance, in the Lubanga case, the ICC’s Office of the Prosecutor (OTP) led by first Chief Prosecutor Moreno Ocampo has faced criticism for not including sexual violence in the charges against the former Congolese militia leader – despite evidence that child soldiers had been subjected to sexual slavery and rape. Hence, despite the ICC’s progressive legal regime explicitly covering sexual violence, ensuring accountability for these crimes was, apparently, not a priority. In more recent years, after second Chief Prosecutor Fatou Bensouda took office, the approach of the OTP has started to change. In 2014, it published a Policy Paper on Sexual and Gender-Based Crimes which set the strategic goal of holding perpetrators of conflict-related sexual violence to account.⁷ Accordingly, the OTP has started to charge these crimes with greater vigor – in particular rape (including against men) and sexual slavery (in the Ntaganda case), as well as forced marriage and forced pregnancy (in the Ongwen case). This changed the ICC’s initially weak track record and rendered then Chief Prosecutor Bensouda’s efforts to increase accountability for sexual and gender-based crimes fairly successful.

While this strategic shift has clearly helped to translate the law in the books to a greater degree into legal practice, remaining accountability gaps raise questions as to further shortcomings in countering impunity. Some of these can be traced to problems at the investigative level. As investigators often lack forensic evidence for sexual violence at the time they belatedly approach crime scenes, these acts might not be apparent at first glance – especially when compared to, for example, mass graves or looted villages. While it should not be denied that investigations concerning conflict-related sexual violence can be particularly challenging, increasing awareness for the varying forms and underlying logics of conflict-related sexual violence, as well as the rapid development of gender-sensitive and tailored investigative methods dispel the persistent and widespread myth that these crimes are “too hard” to prove.⁸ The bulk of the problems at the level of evidence gathering can be encountered by appropriate means, such as a high degree of sensitivity for gender and other (including intersectional) forms of discrimination and a departure from practices – e.g. victim blaming, lack of protection and trust – that have proven to deter victims from coming forward and telling their stories.

Another problem that explains persistent accountability gaps lies in unsolved questions as to the scope and nature of crimes related to sexual violence at the stage of adjudication. For instance, there is no well-established definition of what constitutes an act of a sexual nature.⁹ In the Kenyatta case, the Prosecution charged forcible circumcision and penile amputation as a form of sexual violence. The Judges, however, did not consider these acts to be of a sexual nature and, instead, interpreted them as other inhumane acts.¹⁰ While such varying understandings of sexual violence might seem to be a minor detail, they have major implications for recognition of the specific harm caused. This is not only true concerning the judicial determination of the truth. It can also set the course for the design of reparation in response to these crimes.

Another, yet related problem at the conceptual level is the rather underexplored interrelation between the concepts of sexual and gender-based violence. While both sexual and gender-based violence share the misfortune of being frequently overlooked by the international criminal justice system, an appropriate adjudication of these crimes requires delineating sexual violence from non-sexual manifestations of gender-based violence. Generally speaking, sexual violence refers to crimes with a sexual component (such as rape or sexual slavery), while gender-based violence describes crimes which are inflicted on persons because of their gender (such as gender-based persecution). In many cases, the two categories overlap, for instance in cases of forced marriage or forced pregnancy. And yet, both categories criminalize very different conduct and imply harm of distinct kinds. The lack of clear theoretical conceptualizations leads to problems when interpreting the legal rules. This shows, again, that the mere fact of having a progressive normative framework does not lead, without further ado, to a respective practice.

Last but not least, the fact that the ICC does not have jurisdiction to investigate all crimes committed worldwide is another reason for the remaining impunity gaps. This rather formal cause which is not limited to conflict-related sexual violence explains why, especially in recent years, the attention has shifted from the ICC towards other, domestic criminal justice avenues to close impunity gaps.

Domestic responses

While international criminal justice is often primarily associated with international courts and tribunals, it is, in fact, the primary responsibility of national criminal justice systems to prosecute international crimes that fall within their jurisdiction. Indeed, they are an important part of the international criminal justice system.¹¹ Hence, following the idea of international criminal law’s foundational principle of complementarity, international criminal justice mechanisms only come into play when the competent national justice system fails to adequately prosecute international crimes. Only such a situation activates the international level’s gap-filling or closing function.¹² This system is based on the idea that, ideally, international crimes should be prosecuted where they occurred. Domestic legal systems are often best prepared to understand local customs and are more accessible for victims when compared to the often geographically removed locations of international criminal courts and tribunals, which, in addition, only possess limited capacities. 

A good example illustrating the interplay between national and international criminal justice is the Colombian situation. After decades of unsatisfactory domestic endeavors in investigating and prosecuting war crimes and crimes against humanity (including sexual violence) in the context of the Colombian armed conflict, in 2004 the ICC’s OTP opened a preliminary examination to monitor the genuineness of Colombian proceedings in relation to these crimes. Following renewed national efforts to ensure accountability – especially after the Peace Agreement in 2016 and its implementation which led, amongst others, to the establishment of the Special Jurisdiction for Peace (Jurisdicción Especial para la Paz, JEP)¹³ – the OTP’s current Chief Prosecutor Karim Khan decided to terminate the preliminary examination in October 2021 (without a res judicata effect however).¹⁴ In exchange he convinced the Colombian government to sign a cooperation agreement with the OTP where several guarantees for the domestic accountability process, especially favouring the JEP, have been given while at the same time leaving it in the hands of Colombia to conduct criminal prosecutions.¹⁵ This return of ‘positive complementarity’¹⁶ is of great interest with a view to accountability not only of sexual violence but also of reproductive violence, as the JEP might be the first criminal tribunal in history to try forced contraception and forced abortion (which female members of the FARC-guerrilla were subjected to) as an international crime. It already established a significant precedent concerning the gender-based persecution of LGBTIQ persons as a crime against humanity.¹⁷ This example shows that domestic criminal courts can indeed play an important role in the further development of international criminal law.¹⁸ 

In some situations, however, neither the State in which the crimes occurred is able or willing to investigate and prosecute grave crimes, nor does an international criminal justice mechanism with jurisdiction exist – for example in the case of Syria. With no other legal venues available in such a case, third Statesʼ national jurisdictions come into play. Based on the principle of universal jurisdiction, they can try international crimes even in the absence of a connection with the prosecuting State as last resort to ensure accountability for especially serious crimes which must not remain without consequence.¹⁹ In recent years, there has been a broader turn towards universal jurisdiction trials as a more robust domestic enforcement of international criminal law, with Germany playing a pioneering role.²⁰

With the adoption of the ICC Statute, many member States incorporated universal jurisdiction in their national legislation (albeit not provided for by the ICC Statute). Germany made headlines for bringing international criminal trials before its domestic courts, especially concerning crimes committed in Syria and against the Yezidi population in Iraq and Syria. These proceedings hold many positive learnings for accountability of conflict-related sexual violence at the domestic level: German authorities, the General Federal Prosecutor and the respectively competent courts have made remarkable joint (cross-border) efforts in order to conduct complex international criminal trials. And yet, a lack of awareness of and focus on sexual violence can be observed, especially when looking at the General Federal Prosecutor’s charging strategy. For example, in the Al-Khatib trial on torture in Syria before the Koblenz Higher Regional Court, the indictment initially did not address sexual assault and rape as a crime against humanity. Instead, the Prosecutor classified these acts as detached and isolated from the systematic attack against the civilian population – contrary to international findings. Only at the request of joint plaintiffs did the court deal with sexual violence as a crime under international law, thereby remedying the initially selective charging.²¹

While this example may seem to be a rather technical detail, it goes to the core of the decades-long disregard for sexual violence in international criminal law. When looking at the early work of international tribunals (as outlined above for the ICC), it is, among other problems, precisely the inaccurate assessment of sexual violence crimes at the charging level that led these crimes to remain in the shadows. Interestingly, rape and sexual assault were the only crimes in the Al-Khatib case that were charged as isolated criminal (domestic) acts not qualifying as international crimes.²² With this bias towards sexual violence, the Al-Khatib case demonstrates the bitter irony of history repeating itself at the domestic level – both regarding inaccurate charging strategies and concerning the lag of the practice when compared to the existing legal framework to the detriment of victims of sexual violence. It is an instructive example of how even a well-established criminal justice system with the respective provisions is no guarantee for adequate criminal prosecutions.²³ Again, this is not a new phenomenon but fits well into the unfortunate pattern of how sexual violence has historically been understood and treated in international criminal law. The Al-Khatib trial but also other cases show that the German practice is, apparently, not exempt from this systemic grievance – by either charging sexual violence as domestic instead of international crimes or mischaracterizing and simply excluding them from the charges.²⁴ A good example of the latter is the arrest warrant the German Federal Court issued against Jamil A.-H., the former head of the Syrian Air Force Intelligence Service. Despite acknowledging the systematic use of sexual violence as a method of torture, it was not charged as a form of sexual violence but as torture, thus concealing the sexual nature of the crime.²⁵

In light of the foregoing it is fair to say that German universal jurisdiction cases display an unfortunate lack of attention to sexual violence. While it remains to be seen whether future cases will be more careful to implement a gender-sensitive approach to the investigative and prosecutorial work, it is worth noting that the General Federal Prosecutor’s Office has acknowledged a lack of experience with the investigation of sexual crimes.²⁶ The example of Germany shows that it is not necessarily the absence of resources or determination on the part of the prosecutorial authorities, but often a lack of expertise and tailored prosecutorial strategies that hamper accountability for sexual crimes. In addition, national legislators have to make sure that domestic legal frameworks actually comply with international rules, which too often is not the case.²⁷

Beyond retributive justice

While joint efforts to ensure accountability for conflict-related sexual violence both at the domestic and the international level have clearly yielded results, the remaining flaws as well as the international criminal justice system’s sole focus on retributive criminal responses have understandably received criticism. Especially when considering that criminal justice has often overlooked sexual violence and negated victims’ agency, but also when considering the often structural, discriminatory aspects that underlie sexual violence (even beyond settings of armed conflict), more holistic responses raise increasing awareness. Unlike traditional (retributive) criminal justice, new avenues are hoped to better address and redress the harm caused and to ensure a more victim-centered approach, for example by prioritizing reparation.²⁸ At the same time, traditional criminal justice responses are deemed important as a crucial instrument for countering impunity.

Here, again, the Colombian JEP is a particularly interesting example of how these seemingly contradictory demands can be reconciled in practice. The JEP constitutes a rare legal approach that deals with international crimes (including conflict-related sexual violence) going beyond mere retribution and giving preeminence to restorative justice. Several elements reflect the JEP’s mixed or dual nature. One example is the design of an alternative (i.e. non-adversarial) procedure established to promote truth-telling. In this so-called dialogic process, victims and perpetrators are encouraged to engage in a moderated dialogue. Its objective is to understand why a person engaged in the violent acts in question in the first place, to encourage that person to tell the truth and apologize to the victims, and to create a space for both sides to listen and to engage in a meaningful, respectful dialogue.²⁹ Another example are alternative sanctions. Those perpetrators who confess, tell the truth, and participate in activities aimed at reparation and non-repetition will receive mitigated sanctions whose enforcement will normally take place outside the ordinary prison system.³⁰ In cases of sexual and gender-based violence, these activities aim at eradicating gender-based prejudices and stereotypes in order to transform the situation of gender inequality. While sanctions under this framework might still entail the deprivation of liberty (i.e. a sanction of a retributive nature), such measures are a last resort if the main objective of restorative justice has not been achieved at all or only insufficiently. Hence, the JEP tries to reconcile the interests of a transitional justice (TJ) process (revealing the truth, guaranteeing the centrality of the victims in the administration of justice, and contributing to the construction of a lasting peace) with the aspiration of accountability for those most responsible for serious crimes.³¹ Put in simple terms, the JEP’s restorative justice approach is built on a thin line between the criminal prosecution of grave crimes and the broader purposes of TJ, which makes the JEP a unique mechanism – also when it comes to the accountability of conflict-related sexual violence. This example shows that it is possible to create a model that pursues accountability of international crimes beyond the traditional forms of retributive justice, without giving rise to impunity.³²

Concluding remarks

The decades of absolute impunity and disregard for conflict-related sexual violence have fortunately come to an end. International criminal tribunals have successfully started to address this particular form of violence and there is global recognition that remaining impunity gaps have to be closed. The body of respective jurisprudence is constantly growing and modern international criminal law covers a wide array of sexual violence crimes. Beyond the international criminal justice arena, domestic courts also increasingly address conflict-related sexual violence, including taking resort to universal jurisdiction. Nevertheless, problems remain in adequately addressing wartime sexual violence.

The biggest challenges rest in insufficient investigative and prosecutorial strategies as well as ambiguities and misconceptions of the judicial nature of these crimes. Both domestic and international practice have shown that even the most progressive legal framework does not lead to accountability of conflict-related sexual violence when it is not translated into practice. It is to be hoped that these shortcomings will be recognized, addressed and corrective action taken. While national jurisdictions can well be expected to gain growing importance in prosecuting sexual violence in the future, restorative justice approaches are also gaining increasing attention. It remains to be seen to what extent these will complement or even replace traditional retributive justice models in the future – especially in TJ contexts.