Bemba: First sentence for SGBV and turning point for the ICC
By Dieneke de Vos
About fourteen years after its creation, the International Criminal Court issued its first ever trial judgment for sexual and gender-based violence (SGBV) last March when it convicted Jean-Pierre Bemba Gombo (Bemba) for his responsibility as commander for two counts of war crimes and three counts of crimes against humanity, including rape.
Yesterday, he was sentenced to a total of 18 years’ imprisonment. It is the highest sentence issued by the ICC to date, and the first for sexual violence crimes. Issued two days after the International Day for the Elimination of Sexual Violence in Conflict, his sentence is an important step towards countering the historically inadequate response to sexual violence and represents a turning point in the ICC’s thus far disappointing record regarding sexual violence convictions and sentencing.
Bemba, a former Congolese vice president, stood trial at the ICC for crimes committed by soldiers of the Mouvement de libération du Congo, who were acting under his command, in the Central African Republic in 2002-2003. Having been convicted of murder and rape as both a war crime and crime against humanity, and of pillaging as a war crime, Trial Chamber III sentenced Bemba to 16 years imprisonment for murder and pillage, and 18 years for rape; he will serve the sentences concurrently. Bemba is only the third person to have been convicted and sentenced by the ICC. His sentence is marginally longer than the previous two: Thomas Lubanga Dyilo and Germain Katanga were sentenced to fourteen and twelve years’ imprisonment, respectively, but neither included a conviction for sexual violence. For a Court whose statute at the time of adoption was heralded as a model for gender justice, its first sentence for SGBV crimes was thus long overdue.
An important moment for SGBV
The ICC’s sentencing decision represents an important moment for international justice in general, and for SGBV crimes in particular. The rape charges constituted the most prominent part of this case, that rape as both a war crime and crime against humanity brought the highest sentence yet to the ICC is significant. This symbolism alone matters. It is a stark reminder to commanders and others around the world that rape is no longer tolerated and that commanders will be held accountable for their failure to prevent, repress or punish the commission of such crimes.
The decision carefully considered the impact of the crimes on victims, and includes important affirmations concerning the gravity of SGBV and the relevant factors for sentencing. It describes the wide-ranging and long-term physical, psychological and social consequences the rapes had on the victims and found that the crime of rape was particularly grave in light of the serious damage caused.
The Chamber also found two aggravating circumstances for the purposes of sentencing: (i) the particular defencelessness of victims and (ii) the cruelty with which the crimes were committed. The Chamber noted the especially young age of several victims, some of whom were as young as 10 years old and that all rapes were accompanied by verbal and physical abuse and threats of death to victims and their families. The victims were generally forcibly restrained, attacked in remote locations or when seeking refuge, by several perpetrators, and often raped repeatedly.
The Chamber equally considered that Bemba’s failure to prevent, repress, or punish the crimes underscored the gravity of his conduct (although it refrained from determining this an additional aggravating circumstance). It found no mitigating circumstances. These findings are important as they reaffirm the gravity of sexual violence, and consolidate the special status accorded to these crimes within the Rome Statute.
While it is the highest sentence at the ICC to date, in many national jurisdictions individuals receive much higher sentences for arguably less grave crimes. The prosecution had asked for a minimum sentence of 25 years imprisonment, and the Victims’ Legal Representatives had equally suggested a higher sentence. Minus the time already spent in ICC detention since his arrest in 2008, Bemba will serve another 10 years in prison. In four years, in 2020, he will be eligible for a review of his sentence under article 110 of the Rome Statute when he will have served two-thirds of the 18 years. Subject to the Chamber’s review at that time – which will review criteria such as his conduct in prison, his personal circumstances and whether he accepts responsibility – Bemba may be eligible for a reduction of his sentence.
Nonetheless, while subject to appeal, the decision is a milestone: that the highest sentence at the ICC to date has been issued for sexual violence is (at a minimum) symbolically significant. Whether the sentence served will bring the measure of closure victims have been so eagerly waiting for is another question. The Chamber is expected to issue its reparations order in due course. With the particular focus on sexual violence in this case, and the attention paid to the complexity of these crimes in the trial judgment and sentencing decision, the reparations order will surely represent yet another important milestone for gender justice in international criminal law.
Dieneke de Vos is a doctoral researcher at the European University Institute, Law Department