Authored By: Ipek Vatansever
Introduction
The International Criminal Court (ICC) was instituted mainly with the lofty goal of rendering justice to victims who have endured international crimes, which include a variety of serious crimes such as sexual violence, an issue that is considered a critical and serious issue during periods of armed conflicts. However, notwithstanding its good-intentioned agenda, the court has encountered a number of obstacles in its bid to ensure timely and effective justice to survivors of sexual violence, even despite the legal backing and the numerous provisions that are clearly stipulated and provided under the Rome Statute. Despite the promises of prompt accountability and reparations ushered in by the Rome Statute, the stalled advancement on sexually violent conflicts tells a different story, one of unfinished promises. Failure to fulfill promises renders the ICC ineffective, while extending the trauma for victims who have to wait several years, or even decades, for the so-called ‘justice’.[1]
The essay will explore how delay in ICC proceedings, particularly sexual violence cases, constitutes a denial of justice by examining case law Bemba, Ntaganda, Lubanga and corresponding articles in the Rome Statute. The essay will also look at how reparation and victim representation impact the ICC process and critically assess the final reasons attributable to the delays-from a sexual violence crimes point of view. Lastly, this article will make reform suggestions to aid the ICC in advancing its agenda of justice for victims.
Rome Statute & the Promise of Justice
The Rome Statute, which was implemented in the year 2002 and is historic for having created the International Criminal Court (ICC), includes a number of essential provisions that are expressly aimed at ensuring that justice is served for victims of sexual violence. In this foundational legal instrument, Article 7(1)(g)[2] expressly declares sexual violence a crime against humanity, thus recognizing the gravity and seriousness of such violence on an international level. In addition, Article 8(2)(b)(xxii)[3] goes a step further by criminalizing certain acts of sexual violence that take place during armed conflict, demonstrating the acknowledgment of such crimes as being especially heinous in the context of war. Taken together, these provisions not only form the foundation of the ICC’s critical function in confronting the problem of sexual violence but also play a significant role in advancing accountability for perpetrators of such atrocities. Furthermore, Article 68[4] plays a crucial role in ensuring the involvement of victims in legal proceedings. Under this provision, survivors of sexual violence have the real possibility of having their voice heard in a court of law.
In spite of these robust legal frameworks, the ICC has encountered challenges in living up to its commitments. The provisions on sexual violence in the Rome Statute are strong on paper but frequently fail in practice. For instance, whereas the law does make provision for victim participation in the legal process, the inordinate delays that quite frequently occur in case proceedings are quite frequently a matter of victims having to wait several years before they are able to see any form of justice being done. In most instances, these inordinate delays not only prolong the process but also end up retraumatizing victims instead of providing them with the much-needed closure they so avidly crave. Moreover, the fact that there is no well-defined and enforceable timeline for prosecutions and reparations further serves to increase and exacerbate this critical problem. A case in point of the systemic gap is the Lubanga case, in which sexual violence was not charged despite overwhelming evidence, indicating the failure to respond to the specific needs of sexual violence victims effectively. Thus, although the legal framework holds out the promise of justice, its inability to render timely and consistent action denotes substantial gaps in the ICC’s potential to protect the victims and ensure accountability.[5]
Case Analysis
Bemba Case: Unreasonably Protracted Delay, Pending Appeal, and Subsequent Reversal — The Issue of Victim Retraumatization
In the Prosecutor v. Bemba [6] case, the accused, Jean-Pierre Bemba, was charged with war crimes and crimes against humanity, such as sexual violence perpetrated by his troops in the Central African Republic. The case was tainted by extreme delays. Firstly, way back in 2016, Bemba was handed a conviction for his actions, yet the same conviction was subsequently overturned during the appeal case in 2018.[7] Reversing the initial ruling as it did, while it certainly represented a significant legal victory for Bemba himself, thus had the unfortunate effect of delaying the time before the perpetrators of sexual violence could have been held accountable for their atrocities. Secondly, the incident caused additional trauma on the part of numerous survivors because they previously underwent long and arduous court hearings in search of justice.
The appeals process, combined with the long investigation and trial stages, kept survivors of sexual violence in a situation of prolonged uncertainty for a period spanning well over a decade. This has raised grave and significant questions regarding whether the International Criminal Court is able to provide swift and efficient justice.
The case seriously brought to the fore the critical issue that delays in legal processes not only delay the dispensation of justice to the victims but also inflict further suffering on their health. The survivors, having gathered all the courage and decided to take advantage of the legal processes, felt frustrated and disappointed by the very long time taken by the procedure as well as the subsequent appeal that followed. The emotional and psychological rehabilitation of the victim were severely affected by such delays, aptly illustrating the point that whenever justice is delayed, it tends to become tantamount to justice being actually denied.
Ntaganda Case: Prolonged Legal Proceedings Continue Despite Strong and Overwhelming Charges
The Prosecutor v. Ntaganda[8] case provides a stark illustration of the ways in which delays in ICC cases frustrate the court’s capacity to provide timely justice to survivors of sexual violence. Ntaganda, a former commander in the Democratic Republic of Congo, was accused of multiple war crimes and crimes against humanity, including the sexual enslavement of girls and women. Considering the seriousness of the charges which had been filed against him, the trial ultimately commenced in the year 2015, which was nearly eight long years since he had first surrendered.
The case was characterised by enormous delays that were witnessed in both the investigation procedure and the subsequent legal procedures, which ultimately resulted in feelings of frustration and disappointment among the sexual violence victims who were sincerely looking for justice for their experience. Although Ntaganda was convicted and found guilty in 2019, the long and protracted nature of the lead-up to the trial meant that the victims were forced to wait a considerable amount of time before they were able to see any kind of accountability for the serious crimes that had been committed against them. In addition to this, the long delay in the legal process meant that there was a concerning development in which many survivors, especially those who lived in the more remote and inaccessible areas of the Democratic Republic of the Congo, were not provided with any form of reparative measures or assistance, which only helped to compound and continue the trauma that they had already endured.
Lubanga Case: Despite Evidence, Charges of Sexual Violence Not Brought
In Prosecutor v. Lubanga[9], the accusation was brought against Thomas Lubanga for conscripting and enlisting child soldiers for active duty in armed conflict. Despite ample evidence that Lubanga forces were responsible for widespread sexual violence, crimes of sexual violence were not included. The step is indicative of the failure of the ICC to prioritise sexual violence crimes within its prosecution agenda despite the frequency of the evidence put forth on such a crime.
The decision that was rendered to strike sexual violence charges from the list of issues to consider sent an especially disappointing message to the victims of such crimes and activists who fight for them. Taking these horrific and heinous crimes off of consideration implies that they are less serious or pressing than other crimes, like substantive concerns such as the recruitment of child soldiers, which is itself a serious problem. The omission of sexual violence charges in the Lubanga case recognizes the institutional failure of the ICC in treating sexual violence as a priority aspect of international crimes. The inability of the court to deliver prompt justice to Lubanga mirrored the court’s insufficiency in addressing sexual violence subsequent to conflicts, thereby denying the victims legal recourse for several years.
Victim Participation & Delayed Reparations
The primary, most essential and foundational element of the ICC’s regime of justice for victims is based on victim participation. This right to victim participation is outlined in Article 68[10] of the Rome Statute[11] and empowers the victim to be acknowledged in the proceedings and, in the end, engaged and empowered in the process. Yet, for all the victim participation relative to an ICC trial, many never see their day in court and for months on end, victims are left waiting for such participation via a trial that should have been held far sooner.
Unfortunately, this is not the only concern beyond court proceedings; this is also true of reparations. The fact that the deliberation of trials takes so much time and the final determination even longer means that victims already improperly compensated from the onset of sexual violence or those not receiving compensation at all are now living with under or without-reparations for as long as it takes for the final determination. Furthermore, the final determination of reparations causes a time lag, meaning that victims cannot get back to their lives and sense of being in the interim (which is almost impossible) yet at the very least, should have facts on their side to allow for quicker compensatory efforts on behalf of their physical, emotional, and financial strain.[12]
Therefore, the legal notion of how the ICC intends to function is highly removed from reality, when victim participation and victim’s spoils are no better ten years down the line after excessive processing. Changes must be made to reconcile any inconsistencies between judicial courts and social services. Instead of forcing victims into prolonged court proceedings, the ICC should apply a more expedited version that confers proper victim sensitivity and involvement while focusing on rapid reparations. This will show an appreciation of victims and not make a process that is already challenging even more traumatic.
Root Causes of Delay
Ultimately, two overlapping delays contribute to prolonging ICC proceedings, especially regarding sexual violence. First, one of the most prominent delays revolves around the factors and hindrances that emerge because of resource limitations at the ICC. For instance, when the ICC does not possess enough resources, it delays specific investigative findings and adjudicative review. When proper funding is not allocated to proper hearings or reviews, this causes trial delays and delays victim access to potential reparations. The longer a victim or accused has to wait for their matter to be resolved, the less likely they will obtain the appropriate reparative action from the ICC. If the ICC intended remedial actions, the longer someone must wait to have their allegations heard will lessen the value in the ultimate response.[13]
Second, another delay stems from a reluctance from international resources and players associated with matters pending review by the ICC. This includes countries that refuse to acknowledge what the ICC needs them to do sometimes—arresting a particular person on behalf of the ICC or providing necessary evidence. In addition, even when people are willing to testify, some sexual offenses are so extensive that the investigations and witness testimonies require such distance travel to support them that it can take months and years before proper support is provided. Thus, even when the ICC is ready to proceed, motivation from others often delays things further.[14]
The burden of proof in sexual violence offenses—victims are often not believed due to the overwhelming stigma against them in society—issues another barrier to prompt investigation. Such things make for a lengthier, more complicated situation in which victims are not believed and as a result, become stuck in their compounded abuse and constant mental anguish.[15]
Conclusion
Considering the need to change for better processing of the ICC’s response to sexual violence cases, not only does the effectiveness of the court come into question, but the effectiveness of the trust of the victims whom the court was intended to serve is also at stake. The longer someone has to wait for a case to be processed, the longer they have to wait for their justice; for victims and potential survivors, this means prolonged distress which reduces their ability to reintegrate into society from the onset of healing and obtaining closure. Therefore, this can be more effectively changed through awareness through structural/systems injustices that render it impossible to pursue action quickly—understaffed with budget restraints and disinterest in compliance—change is possible.
Change is possible through better reform for more efficient processing, timeliness of when a trial should legitimately begin and increased compliance with member states to either secure necessary international arrests or quickly gather evidence for ICC review. Furthermore, there should always be a mindset within the ICC to ensure prioritization for sexual crimes, for these criminals should not be allowed to roam free without international justice.[16]
In addition, Victims require improved communication with the ICC throughout the trial and increased ICC victim engagement and assistance in the process. These adjustments and additions would help the ICC accomplish its goal of delivering justice to sexual violence victims and creating a wonderful atmosphere for them during the healing process.
BIBLIOGRAPHY
Primary Sources
Cases:
- Prosecutor v Jean-Pierre Bemba Gombo (Juddgment) ICC-01/05-01/08-3343 (21 March 2016)
- Prosecutor v Jean-Pierre Bemba Gombo (Juddgment) ICC-01/05-01/08-3636 (8 June 2018)
- Prosecutor v Bosco Ntaganda (Judgment) ICC-01/04-02/06-2359 (8 July 2019)
- Prosecutor v Thomas Lubanga Dyilo (Judgment) ICC-01/04-01/06-2842 (14 March 2012)
Acts/ Statues / Treaties:
- Rome Statute 1998
Secondary Sources
Books:
- Bantekas Ilias, International Criminal Law (4th edn, Hart Publishing 2010)
- Cassese Antonio, Gaeta Paola, Cassese’s International Criminal Law (3rd edn, Oxford University Press, 2013)
Journal Article:
- Robins Simon, ‘Failing Victims? The Limits of Transitional Justice in Addressing the needs of Victims of Violations’ (2017) 41-58 Human Rights and International Legal Discourse
- Goodman Sarah, ‘The Effectiveness of the International Criminal Court: Challenges and Pathways for Prosecuting Human Rights Violations’ (2020) 12(9) Inquiries Journal
- Song Sang-Hyun, ‘International Criminal Court-Centred Justice and Its Challenges’ (2016) 17(1) Melbourne Journal of International Law
- Stereo Milena,’The International Criminal Court: Current Challenges and Prospect of Future Success’ [2020] 52(1) Case Western Reserve Journal of International Law
[1] Ilias Bantekas, International Criminal Law (4th edn, Hart Publishing 2010)
[2] Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 art 7(1) (g)
[3] Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 art 8(2) (b) (xxii)
[4] Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 art 68
[5] Carsten Stahn, A Critical Introduction to International Criminal Law (1st edn, Cambridge University Press, 2018)
[6] Prosecutor v Jean-Pierre Bemba Gombo (Judgment) ICC-01/05-01/08-3343 (21 March 2016)
[7] Prosecutor v Jean-Pierre Bemba Gombo (Appeals Judgment) ICC-01/05-01/08-3636 ( 8 June 2018)
[8] Prosecutor v Bosco Ntaganda (Judgment) ICC-01/04-02/06-2359 (8 July 2019)
[9] Prosecutor v Thomas Lubanga Dyilo (Judgment) ICC-01/04-01/06-2842 (14 March 2012)
[10] Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 art 68
[11] Rome Statute 1998
[12] Milena Stereo, ‘The International Criminal Court: Current Challenges and Prospect of Future Success’ [2020] 52(1) Case Western Reserve Journal of International Law
[13] Sang-Hyun Song, ‘International Criminal Court-Centred Justice and Its Challenges’ (2016) 17(1) Melbourne Journal of International Law
[14] Antonio Cassese, Paola Gaeta, Cassese’s International Criminal Law (3rd edn, Oxford University Press, 2013)
[15] Sarah Goodman, ‘The Effectiveness of the International Criminal Court: Challenges and Pathways for Prosecuting Human Rights Violations’ (2020) 12(9) Inquiries Journal
[16] Simon Robins, ‘Failing Victims? The Limits of Transitional Justice in Addressing the needs of Victims of Violations’ (2017) 41-58 Human Rights and International Legal Discourse
