INTRODUCTION

The widespread of sexual violence largely perpetrated in armed conflicts as war tactics is no longer news. The echoes of victims and survivors is not only horrific, but outrageous and requiring urgent attention geared towards a concrete solution. The mass atrocities revealed the demand to prosecute perpetrators via legally binding instruments to regulate proceedings in order to punish offenders, forestall future recurrence and encourage deterrence.  This informed the promulgation of the Rome Statute which gave rise to the International Criminal Court located at The Hague, the first permanent Criminal Court so empowered to try perpetrators of war crimes, crimes against humanity and aggression after 1 July 2002, its effective date.

BACKGROUND TO SEXUAL VIOLENCE

Sexual violence is descriptive of carnal or venereal act without the consent of the victim/survivor first heard and obtained. Victims because the law recognizes and awards remedies accordingly; and survivors because the perpetrator has not taken away their empowerment and dignity as humans, and are still alive, although no remedy awaits a survivor in law. Sexual violence could manifest in child sexual abuse, rape, sexual assault, sexual harassment, sexual exploitation amongst others. It cuts across persons irrespective of age, race, sexualities, religion and background. Article 7 (g) of the Rome Statute classifies under crimes against humanity “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any form of sexual violence of comparable gravity.” A narrower consideration will be had to cases of rape as a weapon of war.

Findings have shown that majority of victims are largely woman and girls, with the opposite sex, male being the perpetrator. This does not entail that men and boys are not and cannot be victims of sexual violence. Resolution 1325 recognizes women and girls as largely affected by armed conflicts while enacting participation, protection, prevention and Relief and Recovery as its four main pillars. Major General Patrick Cammaert states that “it is now more dangerous to be a woman than to be a soldier in modern conflict.” The fromer Secretary General, Ban ki-Moon also noted that “in no other area is our collective failure to ensure effective protection for civilians more apparent… than in terms of the masses of women and girls, but also boys and men, whose lives are destroyed each year by sexual violence perpetrated in conflict.”

WHO ARE VICTIMS?

“For the purposes of the Rome Statute and the Rules of Procedure and Evidence: (a) “Victims” means natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court; (b) Victims may include organizations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes”.

Under the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, Paragraphs 1 defined Victims to mean “who individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power; and Paragraph 2- A person may be considered a victim, under this Declaration, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim. The term “Victim” also includes, where appropriate, the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization. ”

From the above definitions emanate different types of victims, all of whom must have experienced impairment and hurts bodily, intellectually, psychologically, hysterically, productively  or breach of their constitutionally guaranteed right which infringes on their personal liberty within the Court’s competence. Within the competence of the Court entails that victims could be from acts of genocide, Crimes against Humanity, War Crimes and Crime of Aggression. As such, irrespective of the above enlisted crimes, victims can be categorized as:

1. Individual victims: are persons also referred to as the primary victims, are persons directly affected by the harm either living or deceased. Although, with relation to deceased persons, a subject of debates between the various Chambers, as Rule 89 (3) allows for the applications subject to the person’s consent which manifestly cannot be obtained given the circumstances. The Pre- Trial Chambers III in The Prosecutor v Jean- Pierre Bemba Gambo held that a victim never ceases to be one as a result of death; such applications will be granted once provided that the deceased was a natural person, the person’s death resulted from a crime within the Court’s competence and the application is made by the deceased’s successor.
2. Collective victims: this are group of individuals, organizations and institutions.
3. Indirect Victims: These victims not the primary victims, but affected as a result of the consequences which befell the primary victims, as such, could also be referred to as secondary victims. These are the immediate families, dependants  and/or communities.
4. Victims of Unidentified Perpetrators: persons are also victims who have suffered harm, but the Perpetrators are yet to be identified, apprehended, prosecuted or convicted.

IS RAPE AN ENORMOUS PROBLEM?

 “It’s hard to convey the level of trauma of South Sudanese women whose bodies are literally the war zone, mothers and daughters endure assaults on an unimaginable scale and we cannot even patch them up physically afterwards, let alone deal with long-term scars.”  It’s enormous as most cases are unreported from fear of stigmatization from either their families or the society, ostracizing and threats from the perpetrator to inflict more harm. It has a huge impact on the individual, communities and the State ranging from psychological impact (emotional and mental), health related issues (STIs and unwanted pregnancy), physical injuries (bruises), behavioural changes (low self-esteem, suicide attempts, drinking, smoking withdrawals) to economic impact (poverty, cost of meeting the needs of the victim/ survivor and justice).

Its consequences are not only severe, but amounts to torture. In Mucić et al. rape was recognised as a form of torture. Torture is “ any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or accidental to lawful sanctions.” It is pertinent that no individual should be subjected to any form of torture, cruel, inhuman or degrading treatment or punishment. Torture ignores the victim’s intrinsic dignity and destroys their identity and personality.

 

ARE VICTIMS ENTITLED TO ANY RIGHTS?

Victims are entitled to justice arising from criminal prosecution, restitutions and guarantees of non-recurrence, compensations (should be quick, just and commensurate), assistance, reparation and Rehabilitation.

CASES OF SEXUAL VIOLENCE IN ARMED CONFLICT

Resolution 1820 identifies sexual violence as a tactic of war employed during armed conflict.

Rwandan Women experienced large scale sexual violations manifested in rape in the 1994 genocide by the Hutu militia, Interahamwe, other civilians and Rwanda Armed Forces with the aim to destroy the Tutsi as a group. The International Criminal Tribunal for Rwanda in the case of the Prosecutor v Pauline Nyiramasuhuko et al convicted the accused persons for crimes of genocide, conspiracy to commit genocide, crimes against humanity of extermination, persecution and rape and war crimes. Pauline, who was the then Minister of Family and Women Affairs was sentenced to life imprisonment.

In the Eastern part of the Democratic Republic of Congo was heightened sexual violence occasioned by political unrest with 1,053 documented cases by the UN Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO). 700 cases were attributed to non-state actors, 239 to the Armed Forces of the Democratic Republic of Congo, 76 to the Congolese National Police and 38 to other state actors. These atrocities were committed inside citizens homes, detention centres, fields and secluded areas. In the words of a victim, “I was abducted at seven years, and was forced to bear a child at 13 years of age. My body has never been the same. If Ongwen is not punished, victims like me should commit suicide.”

In the Prosecutor v Dominic Ongwen,  Ongwen was the Brigade Commander of the Lord’s Ressistance Army (LRA) charged with 61 counts of crimes against humanity and war crimes committed in Northern Uganda in July 2002 and December 2005. The trial began in 2016 with judgment delivered 4 February 2021 which was confirmed on Appeal. He was convicted and sentenced to 25 years imprisonment.

Of most recent is South Sudan atrocities in form of gang rape accompanied by physical assaults against women and girls by the armed groups with no government nor military leaders held accountable for such acts. This acts has resulted in women given birth to children, contacting sexually transmitted diseases, miscarriages, abandonment by their husbands and families, some disappearances, the where about which is uncertain among others.

CHALLENGES ARISING FROM SEXUAL VIOLENCE

LOCAL: Stigmatization, gender discrimination prevalent in patrilineal societies wherein women are prevented from participating in whatever nature, inadequate or no resources to aid in health, societal and security issues.

 NATIONAL GOVERNMENTS:  failure to update penal legislations to represent present day realities; where such legislations exist, failed implementation and enforcement; funding, corrupt administrative and judicial institutions and lack of resources and infrastructure to protect the female gender.

INTERNATIONAL COMMUNITY: failure getting cooperation and approvals from national governments, failure at providing campaigns and awareness even unto the local levels, lack of local personnel, funding, and refusal to take prompt action, reaction and proffer definite solutions.

UNITED NATIONS (UN): failure of the UN to enact a legislation to provide for situations were national governments fail to cooperate or grant approval for intervention, a kind of an exception to the principle of non-intervention; the no-accountability for governments in cases of sexual violence; inadequate or no training of missions on intervention in sexual violence cases; and the no co-operation and coordination amongst UN agencies.

WAY FORWARD

• Engaging transitional Justice Mechanisms in conjunction with criminal prosecution. This is because International criminal justice is limited and a constituent of a comprehensive approach to targeted plan of transitional Justice. Transitional justice seeks to establish that “international and domestic models of justice are not contradictory, but interdependent forces in the process of sustainable peacemaking, in arrears such as criminal trials, victims’ protection and reparations. Thus, a pluralist and complementary approaches, combining parallel mechanisms at the domestic and international level to succeed in practice. The interplay which will produce two positive results of systemic inclusiveness and institutional cooperation”.
• A vetting approach: a vetting approach will not only hold high ranked perpetrators, that is, those in power accountable, it will further ensure their removal from such positions. In other words, even if they are so clothed with immunity arising from their position, they can be held responsible, liable and convicted.
• Synergy among United Nations Agencies: there should be a connection and co-operation between agencies.
• Punishment should Commensurate with Crime: where criminal trial results in conviction, such sentences should be commensurate with the crime so committed. This further entails the amendment of relevant legislations to reflect present day realities.
• Adoption of Individual Centred Approach/Community Centred Approach: put at the center of the activities should be the victims, survivors and communities that bore the brunt of such violence.
• Prompt Justice Delivery because justice delayed may result in justice being denied.
• Proper and regular training and awareness campaigns for armed and other personnel on missions.

SOME QUESTIONS FOR REFLECTION

• Will it not be right to suggest that Survivors having lived through such crimes as sexual violence and alive, be accorded status and rights of a remedy in law?
• Is it sufficient to apprehend, convict and punish perpetrators, without recourse to the yearnings of the victims/survivors?
• Should related legislations not be amended to make punishment commensurate with the acts of violence so committed?
• Should a victim centred approach and community centred approach (where applicable) not be considered in the implementation for effective remedy?

CAREER PROSPECTS

Embarking on the Study trip, would not only help broaden what I have learnt in theory but in practice. It would further help develop the expertise and skill needed working internationally in any organization. Lastly, to have an in-depth knowledge of international criminal justice system and procedures which would create a diverse and balanced environment and views helpful in practice.