Nobel Peace Prize of 2018: Spotlight on Sexual Violence as a Weapon of War

Alexia Jansen

Vol. 40 Executive Editor

The Norwegian Nobel Committee awarded the Nobel Peace Prize for 2018 to Nadia Murad and Dr. Denis Mukwege, “for their efforts to end the use of sexual violence as a weapon of war and armed conflict.”[1] These co-recipients have been recognized internationally for their work as witnesses and advocates of victims of sexual violence during armed conflicts. Their award can be seen as particularly apropos during the #MeToo movement, and it helps highlights the work that still needs to be done in international criminal law in the realm of sexual violence. In the announcement, the Nobel Committee specifically noted that sexual violence is used “as a weapon of war and armed conflict,”[2] a subset of criminal law that can be prosecuted internationally. Sexual violence has been recognized in international criminal law for over two decades. In the 1990’s, the International Criminal Tribunals for the Former Yugoslavia (“ICTY”) and Rwanda (“ICTR”) actively charged and ultimately convicted many defendants with crimes of sexual violence.[3] The tribunals were “pioneers in the clarification and condemnation of sexual violence in war situation[s]” and “brought light to the truth about the frequency of rape in war and the destructive impact on victims and society as a whole.”[4] The ICTR was especially noteworthy in developing this law after 1998 when it acknowledged rape as a constructive act of genocide: “With regard . . . to the acts [of] rape and sexual violence, the Chamber wishes to underscore the fact that . . . they constitute genocide . . . as long as they were committed with the specific intent to destroy, in whole or in part, a particular group.”[5] The Chamber went on to state “[s]exual violence was a step in the process of destruction of the tutsi group – destruction of the spirit, of the will to live, and of life itself.”[6] Also in 1998, the Rome Statute was drafted to create the International Criminal Court (“ICC”).  Notably, the Rome Statute “is the first international instrument expressly to include various forms of sexual and gender-based crimes . . . as underlying acts of both crimes against humanity and war crimes committed in international and non-international armed conflict.”[7] Articles 7 and 8 of the statute recognize “[r]ape, sexual slavery, enforced prostitution, forced pregnancy, [and] enforced sterilization” as acts constituting crimes against humanity and war crimes, respectively.[8] After the ICTY and ICTR’s progressive classification of sexual violence as a weapon in conflicts, the ICC should have been the natural court to take up the mantel and further develop the law. While the Rome Statute took effect and was ratified in 2003, few criminal trials have been completed by the ICC. The ICC has 11 active investigations and 10 other preliminary reviews, but it has only finalized three convictions, has one ongoing appeal, and has four ongoing trials. There have been multiple indictments involving crimes involving rape and sexual violence,[9] however the first conviction for such a crime did not occur until 2016 with Jean-Pierre Bemba Gombo.[10] This conviction was ultimately overturned by the Appeals Chamber in 2018, and Bemba was acquitted and released.[11] This year’s Nobel Peace Prize accentuates the ICC’s ineffectiveness in prosecuting these crimes. The Democratic Republic of the Congo (“DRC”) is one of the most active ICC investigations. The DRC condition, officially referred to the ICC in April of 2004,[12] has been called the “rape capital of the world.”[13] Dr. Mukwege is a physician from the DRC. The Nobel Committee called Dr. Mukwege “the foremost, most unifying symbol . . . of the struggle to end sexual violence in war and armed conflicts.”[14] He has worked “to increase protections for women and to advocate that those responsible for sexual violence be brought to justice, including the Congolese government and the militia groups laying siege to eastern DRC.”[15] The ICC investigation in the DRC resulted in the Court’s first two convictions,[16] however neither was for rape or other acts of sexual violence.[17] While the investigation is ongoing, there are only four other indicted persons, one of whom has already been acquitted. Justice for victims of sexual violence in DRC may have once been hoped for, but this has yet to come to fruition 14 years into the investigation. Nadia Murad similarly represents how the ICC is ineffective in addressing sexual violence in armed conflict. Murad is one of an estimated three thousand Yazidi women and children abducted and held in sexual slavery by ISIS.[18] After escaping captivity, Murad became the first U.N. Goodwill Ambassador for the Dignity of Survivors of Human Trafficking.[19] The Nobel Committee noted that the abuse of Yazidi women is “systematic, and part of a military strategy. Thus [it] served as a weapon in the fight against Yazidis and other religious minorities.”[20] However, for the Yazidi, the prospect of international criminal justice is even more bleak than in the DRC. ISIS presents a problem to both domestic and international criminal courts; for the ICC it presents jurisdictional problems. In 2015, the ICC’s Office of the Prosecutor (“OTP”) issued a statement regarding reports of “[c]rimes of unspeakable cruelty” committed by ISIS.[21] ICC Prosecutor Fatou Bensouda explained that the court “has no territorial jurisdiction over crimes committed” in Syria and Iraq as neither country is a party to the Rome Statute.[22] The ICC has other potential methods of obtaining jurisdiction over the case, but, as of 2015, OTP determined that as “ISIS is a military and political organisation primarily led by nationals of Iraq and Syria . . . the prospects of [OTP] investigating and prosecuting those most responsible, within the leadership of ISIS, appear limited.”[23] Thus, while international recognition of the use of sexual violence in armed conflicts has increased in recent years, international law has been slow to develop and prosecute these cases. The Nobel Peace Prize recognizes the importance of the work Murad and Dr. Mukwege, but also highlights the lack of progress in the international criminal law community since the opening of the ICC.

[1] Press Release, The Norwegian Nobel Committee, The Nobel Peace Prize for 2018 (Oct. 5, 2018), https://www.nobelprize.org/prizes/peace/2018/press-release, [hereinafter The Nobel Peace Prize for 2018]. [2] Id. [3] Alexandra Adams, The Legacy of the International Criminal Tribunals for the Former Yugoslavia and Rwanda and Their Contribution to the Crime of Rape, 29 Eur. J. Int’l L. 749, 751 (2018). [4] Id. [5] Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Judgment, ¶ 731 (Sept. 2 1998). [6] Id. ¶ 732. [7] ICC Office of the Prosecutor, Policy Paper on Sexual and Gender-Based Crimes, at 15, (June 2014), https://www.icc-cpi.int/iccdocs/otp/OTP-Policy-Paper-on-Sexual-and-Gender-Based-Crimes–June-2014.pdf [hereinafter OTP, Policy Paper}. [8] Rome Statute of the International Criminal Court, art. 7-8, U.N. Doc. A/CONF.183/9 (July 17, 1998) [hereinafter Rome Statute]. [9] OTP, Policy Paper, supra note 7 at n.60. [10] See, ICC, Case Information Sheet, Situation in the Central African Republic, The Prosecutor v. Jean-Pierre Bemba Gombo (last updated Sept. 2018), https://www.icc-cpi.int/CaseInformationSheets/bembaEng.pdf [hereinafter Bemba Case Information Sheet]. [11] Id. [12] ICC, Situation in the Democratic Republic of the Congo, ICC-01/04, https://www.icc-cpi.int/drc, [hereinafter ICC DRC Investigation]. [13] See, e.g., Fiona Lloyd-Davies, Why Eastern DR Congro is ‘Rape Capital of the World’, CNN (Nov. 25, 2011, 5:53 AM), https://www.cnn.com/2011/11/24/world/africa/democratic-congo-rape/index.html. [14] The Nobel Peace Prize for 2018, supra note 1. [15] Id. [16] ICC DRC Investigation, supra note 13. [17] See Press Release, ICC, Germain Katanga Found Guilty of Four Counts of war Crimes and One Count of Crime Against Humanity Committed in Ituri, DRC (Mar. 7, 2014), https://www.icc-cpi.int/Pages/item.aspx?name=pr986&ln=en; Press Release, ICC, ICC First Verdict; Thomas Lubanga Guilty of Conscripting and Enlisting Children Under the Age of 15 and Using Them to Participate in Hostilities (Mar. 14, 2012), https://www.icc-cpi.int/pages/item.aspx?name=PR776. [18] The Nobel Peace Prize for 2018, supra note 1. [19] Press Release, UN, Human Trafficking Survivor Nadia Murad Named UNOCD Goodwill Ambassador, (Sept. 16, 2016), https://www.unodc.org/unodc/en/frontpage/2016/September/human-trafficking-survivor-nadia-murad-named-unodc-goodwill-ambassador.html. [20] The Nobel Peace Prize for 2018, supra note 1. [21] Statement, ICC, Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the Alleged Crimes Committed by ISIS, (Apr. 8, 2015), https://www.icc-cpi.int/Pages/item.aspx?name=otp-stat-08-04-2015-1. [22] Id. [23] Id. The views expressed in this post represent the views of the post’s author only.