WUNRN
Special
Report: Sexual Violence in DRC-Democratic Republic of Congo
CONGO
- SEXUAL VIOLENCE CONTINUES - REPORT
RAPE
& VIOLENCE - IMPUNITY - ICC ISSUES - SHAME & PAIN
No Sign of End to the Epidemic
Nearly 40,000 victims of sexual violence treated in medical centres belonging
to UN and partners last year.
By Katharina Goetze in London
When a peace agreement was signed in the Democratic Republic of the Congo in
2002, hopes were high that the country's horrific epidemic of sexual crimes
would end.
Instead it worsened with government soldiers and rebels raping hundreds of
thousands of girls and women. Although the Congolese government passed tougher
laws in 2006 to punish sex crimes, women continue to be raped and alleged
perpetrators set free.
Sexual violence in the DRC escalated during the First Congo War, which ended
with the overthrow of Mobutu Sese Seko, and continued to rise during the Second
Congo War.
"There was a dramatic spike in the number of rape cases when armed
conflict began during the first war from 1996 to 1997 and then second war from
1998 to 2003," said Human Rights Watch researcher Anneke Van Woudenberg.
"During Congo's second war, it became clear that rape was being used as a
weapon of war by all armed groups with devastating consequences for the
victims, but also their families and communities."
Rape victims have been as young as infants and toddlers and as old as
80-year-old grandmothers, according to experts. Some women have been raped by
groups of soldiers, while others have been abducted and held as sex slaves.
Many victims have been mutilated by their rapists or gravely injured by having
wooden sticks or even guns inserted in their vaginas.
According to a recently published report by the All-Party Parliamentary group
on the African Great Lakes, APPG, 38,000 people received treatment in the last
year for sexual violence in United Nations children's agency medical centres or
its partners. Most experts believe that this number represents only a fraction
of the victims.
The war-torn provinces of North and South Kivu on the DRC's eastern border with
Rwanda are the nexus of this epidemic.
A recent letter by Congolese women's groups to the UN Security Council stated
that in April 2008, 880 rape cases were documented by aid groups and UN
agencies in North Kivu. The letter estimated that the rape figure represented
only a tenth of the actual cases, since most go unreported because of fear,
shame and impunity.
Obtaining accurate figures for rape cases is one of the biggest problems for
researchers, says Andrew Philip, of Amnesty International, "Many women and
girls living in areas still under armed group control are fearful of reprisals
if they attempt to report or seek medical care for rape."
Conflict in the troubled Kivu provinces continues as militias struggle over
control of eastern DRC's rich deposits of gold, diamonds, coltan, and other
ores.
While nearly two dozen militias are present in the Kivus alone, the major
armies are the Congolese, the ethnic Tutsi troops of Laurent Nkunda, and
various ethnic Hutu insurgent groups. All have committed crimes of sexual
violence.
"Rape in Congo has been used as a weapon of war, as a tactic by armed
forces to punish communities for supposed support to their enemies, to
demonstrate control or to instill fear," said Van Woudenberg.
Rape is often part of an attack on a community and is done to intimidate
villagers or provide sexual gratification for soldiers. In many cases, says
Philip, ethnicity seems to be a factor in the choice of victims.
Philip believes the tolerance of rape by military commanders has allowed sexual
violence to become endemic, "In that sense, I do believe that the
perpetration of rape is broadly aligned with war aims."
Rape and sexual violence as a weapon of war is not new.
During the war in Bosnia, mass rapes were committed by Bosnian Serbs against
Muslim women.
Similarly, Hutu militias committed widespread sexual violence against Tutsi
women as part of the Rwandan genocide of 1994.
According to UN estimates, 250,000 to 500,000 women were raped during the
three-month conflict in Rwanda, prompting the International Criminal Tribunal
for Rwanda to hand down a conviction against a former mayor in Rwanda,
Jean-Paul Akayesu, for rape as an act of genocide four years later.
That sentence, however, didn't prevent the rape of thousands of women in Sierra
Leone's civil war which lasted until 2001.
Although the cases of Rwanda and Sierra Leone are statistically difficult to
compare with Congo, Van Woudenberg says the outcome has been the same,
"Sexual violence has been used as weapons of war in all three of these
cases resulting in horrific suffering for tens of thousands of women and
girls."
According to a report by the UN Mission in the Congo, the vast majority of
rapes recorded during the first half of 2007 seemed to have been committed by
government troops and police.
Human Rights Watch, however, noted that identifying alleged perpetrators can be
difficult because they often disguise themselves by wearing different uniforms
to avoid detection.
The impunity experienced by soldiers raping civilians has also increased the
proportion of sexual crimes committed by civilians.
Aid groups and UN officials reported that in 2004, only about 13 per cent of
all rapes were committed by civilians. Three years later, the figure had risen
to 40 per cent.
UNICEF's DRC-based Protection Specialist Pernille Ironside pointed out children
are often targeted by civilians, "In some areas, as many as half of the
victims are children."
Although the DRC's rape laws were strengthened in 2006, the legal standing of
victims remains weak because harsh sentences are rarely imposed.
Rather, the number of out-of-court settlements - often mediated by tribal
leaders or local authority officials - has increased.
Such arrangements not only violate civil and military law, they subvert efforts
to control the rape epidemic.
"These settlements are a major problem because they rarely represent the
interest of the victim," said APPG coordinator Stephen Carter. "Men
have been known to have set aside a couple of goats as compensation before even
raping the girl. It's a sign of the complete breakdown of the rule of law,
where people have no other system."
But the popularity of such deals is understandable, says Philip, since many
victims are reluctant to go to court.
Since most magistrates are poorly trained, underpaid, and not inclined to help
rape victims, there is a widespread lack of confidence in the justice system.
Also, women are chronically underrepresented among judicial personnel and must
face male judges, prosecutors, and police who often have a limited
understanding of sexual violence, according to experts.
The ineffectiveness of Congolese courts is evidenced by the low number of
convictions.
Even if victims are willing to face a court trial, for many the fees demanded
by prosecutors and judges, legal or otherwise, are prohibitive.
The difficulties are compounded for those living in the countryside who face
long and expensive travel to courts located in cities.
Proving rape in court can be difficult, so the UN Human Rights Office has
introduced a standardised medical certificate intended to simplify the process.
But according to Carter, it seems to have complicated matters because judges
are demanding the certificates, which are not always available, before
proceeding with rape cases.
While impunity plays a part in the rape epidemic, the motives for the crime can
vary.
For her documentary, The Greatest Silence, filmmaker Lisa F Jackson interviewed
militia members who admitted to many rapes. Some had lost count of how many
women they had raped, but one estimated it could have been 25.
"No one is prosecuting them and when I asked them about the law they just
laughed at me," said Jackson. "Obviously, there is another law in the
bush, they consider it their right if they need a woman and their wives are not
there.
"Some of the. militias I spoke to said that it gives them power before the
battle. One even told me that if his wife was raped to save the Congo he
wouldn't intervene."
There is evidence that some perpetrators of sexual violence are coerced into
committing these crimes.
"We have had a small number of testimonies from armed group fighters,
saying that they were 'expected' to rape by their commanders [and] that food
rations might be withheld or reduced if they didn't rape," said Philip.
"This seems to be more so with child fighters whom commanders seek to
brutalise."
Whatever the motive, the attacks continue at an alarming rate. In some
villages, so many women and children have suffered from sexual violence that
rape has lost its stigma and support for the victims has built up, say experts.
They say local aid groups play an important role in raising awareness among
communities and bringing families back together.
But as the conflict goes on, most feel they can't prevent the crime from
continuing or from destabilising communities, widening ethnic divisions and
blocking reconciliation.
"Rape is cheaper than bullets and it has a more lasting effect," said
Jackson. "It sends a ripple effect that goes forward for
generations."
Katharina Goetze is an IWPR reporter in London.
MILITIAS SEEN AS MAIN PERPETRATORS
The prevalence of armed groups in eastern Congo linked to upsurge in rape
cases.
By Peter Eichstaedt in Goma
"We met soldiers," was Honorine Kavugho's simple description of how
she became one of the countless thousands of women in the eastern Democratic
Republic of Congo, DRC, who have been brutally raped.
Kavugho, a 33-year-old mother of eight, spoke in a voice choked with emotion
and wiped away tears as she described how she was traveling to the town of
Butembo in North Kivu province, along with some 30 people riding precariously
atop a truck loaded with freight, when armed men ambushed the vehicle, killing
most of its passengers.
"Soldiers were hiding in the bush and below a bridge. They stabbed me in
my neck," she said. "They took us to their bunker and we spent four
days there. A child of two years was killed. They took our clothes and
money."
Kavugho had been carrying the equivalent of 2,500 US dollars to buy goods that
she hoped to sell when she returned to Goma, the administrative centre of North
Kivu.
She was raped repeatedly for four days by a group of soldiers led, ironically,
by a female commander named Chantal.
Once the soldiers had tired of her, she was released. Kavugho says Chantal said
she could "die at home".
Kavugho didn't die. But the reception she got at home was worse than death, she
said.
"When I came home, my husband rejected me and my family rejected me,"
she said. "I didn't know if I was still alive.
"He said he would never share anything with me ever again. He called me
the wife of a soldier, rebels, criminals."
Although the attack occurred in 2003, Kavugho has a constant reminder of the
rape - the daughter she gave birth to afterwards. This daughter is the youngest
of her children, all of whom have been raised on the streets.
To keep her family alive, Kavugho begs for handouts.
"Now they are starving," she said.
If the violence she survived was not enough, Kavugho has been diagnosed with
HIV, leaving her in despair.
"All my life has been anger," she said "My family has rejected
me as if I killed a man. I tell my children that in life, there is no hope. You
have to take care of yourself. You have to do the best you can."
Most of the men committing acts of sexual violence are affiliated with the
numerous armed militias in the region, say experts such as Devote Musafire,
chief counselor with Hope in Action, an aid group in Goma funded by the church
and Sweden.
Musafire explained that these paramilitaries are usually far from any
controlling influences such as family and they behave "like animals",
in large part because they know they can get away with their crimes.
"There's impunity," said Musafire. "They know they can rape and
nobody is going to stop them. Nothing will happen. They're aware it is a crime,
but they also know there is impunity."
Sexual violence in this part of DRC has become so prevalent that it is now
commonly committed by civilians as well as combatants, explained Francoise
Kahindo, director of the Union for Life Against HIV, UNIVI. Her organisation
works with women like Kavugho who have contracted the HIV virus as a result of
rape.
"Some are raped by soldiers, and others by civilians," said Kahindo,
noting that militia violence had led to a general epidemic of violence in
society as a whole.
At the same time, she said, "the first problem is the presence of so many
armed groups. They arrest you and rape you. The problem is war".
A peace deal signed in January by more than 20 warring factions in the region
has done little to curb sexual violence, said Kahindo.
"It changed nothing. The number of fighters diminished, but the troops are
still in position. So when people have to go out for food or trade, that's when
they're raped," she explained. "Now it has extended to the rest of
the community."
She noted that dangerous and erroneous beliefs helped spread the disease,
saying, "Some [men] think that if they have HIV, and have sex with a young
girl of two or three, they can be cured."
Often, she said, cases of sexual violence are the result of social interaction,
"Many young girls befriend soldiers, due to poverty. This contributes to
HIV spread."
Such women are confronted with multiple problems, according to Kahindo.
"They suffer two times. The first shock is the act itself. The act of
rape. It touches all women, from the young up to [those in their] sixties. The
second shock is being a victim of HIV. Some are mutilated."
The resulting social stigma is hard to escape, she added.
"People ignore the facts," she said. "They only see a woman
who's been raped. There is a cultural problem. Once a woman has had sex with
someone who is not her husband, she cannot be married any more. We try to explain
that they are victims and life should continue. It's a part of healing."
As a result, she said, "most cases of raped women don't admit it. They
keep silent".
Pastor Clement Lembire, of the New Song Church in Goma, acknowledged that the
rape problem was out of control in eastern DRC.
"The problem is complex here. There are so many factors," he said.
Lembire said that some 15 years ago, rape was not a problem, explaining,
"It's a new phenomenon here because of repeated wars."
He noted that rape is now committed openly and with impunity.
"We've learned that one community can humiliate another community. Some
are taken to prison, but it changes nothing," he said.
"Armed men rape your wife and mother and it's done publicly. How can you
sit and eat with these people? The family unit is gone. Even yourself. You are
dead."
Turning the tide will be difficult, but some progress is slowly being made.
Christine Mpinda, a lawyer with Dynamic Women Jurists, a legal aid group in
Goma, said recent changes to the DRC's rape laws have helped. The legislation
has been expanded to include forced prostitution, sexual mutilation, forced
marriage, sexual harassment and slavery, HIV transmission and forced pregnancy.
Victims are now required to contact police within two days after the crime is
committed, and a prosecutor must process complaints and reports within one
month, she said. Cases must go to court within three months.
The victims have a right to see doctors and psychologists, and a doctor must
certify that rape has occurred.
Once the case reaches trial, victims can appear either in a public courtroom or
in a closed trial chamber.
Another important change is that soldiers can now be arrested without the
permission of their unit commanders. In the past, commanders blocked the arrest
of their soldiers, a situation that guaranteed impunity.
"It is true the law exists, but it's true everything doesn't go
well," said Mpinda.
Noting that "many rapes go unreported", she explained that victims
generally live in remote areas and are unable to afford legal costs, which is
why her group and others provide free legal services.
"The distances do not enable victims to have access to legal help,"
she said. "Most of the cases can't pay to travel from village to town."
Mpinda's organisation works on several cases a month, each of which costs
between 500 and 1,000 dollars to prosecute. Once the case gets to court,
problems persist.
"There is a misunderstanding about sexual violence among people, as well
as judges, that it is not a serious problem," she said.
Of the 20 cases that the group handled last year, 12 defendants received
sentences of five to 20 years in prison, she said. Eight are awaiting
sentencing.
Despite the changes, many are still critical of the law and look to the
international community for help.
"People are disgusted with the law," said Kahindo. "Once someone
has been a victim and goes to court, she's asked to pay money each time they go
to court. They get tired of it and don't go.
"Most women who are raped in a village don't have access to healthcare and
are without roads or access to the outside world."
Kahindo complained that too little had been done to bring the armed groups to
heel.
"If they're in the bush, they're committing crimes," she said.
"How can the international community not take them out of the bush? I
can't believe the international community can't neutralise them. When there is
peace, all this will end."
Peter Eichstaedt is IWPR's Africa Editor.
ICC INVESTIGATIVE STRATEGY UNDER FIRE
Ex-court employees and activists say problems with investigative procedures at
International Criminal Court have meant many sexual crimes are overlooked.
By Katy Glassborow in The Hague
Former court employees and rights groups say a flawed approach to investigating
sexual violence crimes at the International Criminal Court, ICC, has meant many
atrocities are going unpunished.
Ex-ICC investigators told IWPR that not enough analysis and effective planning
has been done ahead of investigative missions to uncover human rights abuses in
Uganda, the Democratic Republic of Congo, DRC, and Sudan.
Gender justice groups say this approach means the most appropriate charges are
not always brought against suspected perpetrators of war crimes. They also argue
that too few sexual violence charges - which are often complex and difficult to
prove - are being issued.
However, prosecutors point out that limited resources mean that they are unable
to pursue all the crimes an individual is suspected of having committed the
charges against a suspect, just a selection. They insist they have made efforts
to bring sexual violence charges, making sure all investigators are trained how
to interview victims ahead of their deployment in the field.
Before an ICC investigation is carried out, prosecutors often decide on the
investigative approach they will take after reviewing material from
international and local NGOs, United Nations agencies, government bodies,
national judiciaries and military police.
After this preliminary information is gathered and reviewed, investigators are
told which alleged perpetrators and particular incidents - such as specific
attacks on villages, mass killings or forced transfer of civilians - to focus
on.
However, because there is great pressure on the ICC to intervene in countries
embroiled in, or emerging from, conflict, investigators say they are being sent
in to investigate before an adequate analysis of this information is complete.
Because they arrive in the country already focused on gathering evidence of a
particular set of crimes, committed in specific locations and on specific
dates, they say this means other atrocities are often overlooked.
Even when investigators stumble across evidence of other crimes not on their
initial list, they say they lack the time to investigate these properly,
meaning that the alleged perpetrators are less likely to be charged.
A LACK OF PLANNING BEFORE INVESTIGATIONS
A major problem cited by former ICC investigators is that they were sent to
countries to gather evidence without sufficient time to review information
already gathered from other sources operating on the ground.
As a young institution, the ICC is under enormous pressure to prove itself and
bring justice to countries which cannot or will not prosecute grave war crimes
domestically.
As a result, former investigators say that prosecutors have pushed them into
situations before they have thoroughly collected and analysed existing
information.
"We didn't have sufficient time to do the preliminary collection of
information," said Martin Witteveen, who worked as an ICC investigator in
Uganda, the first country to be investigated by the fledgling court.
"The prosecutor wanted indictments issued within a year, but the success
of investigations depends on the first phases of information collection and
analysis."
Former ICC staffers say that investigators sent to Sudan to probe atrocities in
Darfur said they were rushed to begin investigations before they had time to
examine existing documentation. Former ICC staffers say that investigators sent
to Sudan to investigate atrocities in the Darfur region were rushed to begin
investigations before they had time to examine existing documentation.
Before the UN Security Council, UNSC, referred Darfur to the ICC in March 2005,
a UN Commission of Enquiry was sent to investigate human rights violations
there. The commission found that the government and allied
"janjaweed" militias conducted widespread and systematic rape and
sexual violence throughout Darfur. Women and children were enslaved, and girls
as young as ten years old subjected to gang rape.
"Rape by janjaweed and government soldiers surrounding IDP [internally
displaced persons] sites have occurred in sufficient numbers to instill fear of
such incidents amongst women and girls, and has led to their virtual
confinement inside these sites," said the commission's report.
While these findings were passed on to the ICC, former court staff say that
prosecutors buckled under what was perceived as outside criticism for not
moving fast enough, and launched the investigation before sufficient planning
had been done.
Former staffers say more analysis should have taken place internally before
investigators were sent out. As a consequence, they say, interviews with
victims of sexual violence were not specifically planned as an aspect of the
investigation.
Ex-investigators say evidence of these abuses only emerged when they spoke to
survivors about what they suffered during crimes incidents that prosecutors
wanted to probe.
Those who worked on a variety of different cases also say they were instructed
to change direction in the middle of investigations to focus on a different set
of incidents and crimes. This reflected an overall lack of strategic direction,
and meant that the limited time they had was not used efficiently.
"You can start off looking for A and end up finding B, which may be a
better basis for prosecution, but if you change what you are looking for, it
wastes time as you do not build on what you gather," said one former ICC
staff member.
Those investigating war crimes in DRC expressed frustration that one day,
without explanation, prosecutors told the team probing an ex-leader of the
Union of Congolese Patriots, UPC, Thomas Lubanga, to drop a year and a half of
investigative work and focus solely on the use of child soldiers.
In the course of investigating incidents like mass killings in a village, they
say they had also found evidence of torture, pillage, rape, and enslavement.
"It was bizarre and surprising," said a former investigator. "We
had been investigating killings, attacks on villages, the flow of illegal
weapons - but one day a decision was made to focus just on child
soldiers."
The same ex-employee says he thought that this might have happened because the
investigation had already taken a long time, and prosecutors wanted something
to present at court as soon as possible.
"For a year and a half, we didn't just investigate the use of child
soldiers - sexual violence was part of the overall investigation - but the
decision to focus meant that all the things we had done for the last year and a
half was gone," he said.
"I cannot remember how and when the explanation was given, but it was
important for the office [of the prosecutor] to present a case before the
court."
Christine Chung, a former senior trial attorney at the ICC who steered
investigations for the prosecution in Uganda and DRC, acknowledged that there
was pressure on prosecutors to start cases.
However, she told IWPR that this pressure did not adversely affect
investigations.
"Pressure to start cases was there, but that factor did not cause planning
for the investigation of sexual violence crimes to be impaired," she said,
insisting that any obstacles encountered were due to the lack of security on
the ground.
"The office of the prosecutor does a great deal of pre-investigation
planning - many think for too long - [and] at some point you need to go to the
field."
Beatrice Le Fraper du Hellen from the ICC prosecutor's office, OTP, du
Hellensays that in early investigations there was a sense that to build the
institution, the most important thing was to start cases.
"There was a lot of analysis to find out the situations of the most
serious crimes. and start as soon as possible. The idea was if we want to get
the court started, there was no way we could investigate for years and years
and not have cases. Once we have sufficient evidence, we have to move."
Critics and insiders agree that things have changed for the better in recent
investigations such as the Central African Republic, CAR, where planning was a
lot more extensive than in previous investigations before investigators were
deployed to the field.
"We have a field office in the CAR and everything was ready before we
announced the investigation. We already identified the places we wanted to
investigate, so the planning was good," said Le Fraper.
NARROW FOCUS OF INVESTIGATIONS
According to former investigators, a common strategy used by ICC prosecutors is
to instruct investigators to focus on a limited set of incidents which have
been reported by organisations on the ground, such as the looting of a village,
for example.
But they note that concentrating on a narrow range of incidents means other
crimes are never fully investigated or prosecuted.
Human rights groups, meanwhile, accuse the prosecution of looking to secure
quick convictions, rather than striving to capture a representative range of
crimes committed during a given conflict.
In the case of the insurgency in northern Uganda - which was referred to the
ICC by the country's government at the start of 2004 - prosecutors made a
decision early on to focus investigations around what they considered to be the
six most brutal attacks by the rebel Lord's Resistance Army, LRA, in the north
of the country since 2002.
Before beginning investigations, ICC prosecution analysts received documents
from local NGOs and rehabilitation centres where children abducted and held
captive as child soldiers, porters and sex slaves gathered when they came out
of the bush. They also collected evidence from the Ugandan authorities, which
had documented the actions of the LRA over the last 20 years, and rooted
through newspaper articles written about attacks.
After gathering examining this body of evidence, prosecutors decided to limit
their investigation to six incidents. This decision - made at the end of
September 2004, when they had been in the country for just four weeks - was
never changed.
"Nothing else other than those six incidents was [ever]
investigated," said Martin Witteveen, who worked as an ICC investigator in
Uganda.
One year later in July 2005, arrest warrants were issued for five LRA members
for 33 counts of crimes against humanity and war crimes. Despite evidence that
crimes of sexual violence were widespread during the 20-year conflict, only two
of the top commanders have been charged with such crimes.
LRA leader Joseph Kony is accused of sexual enslavement, rape and ordering
rape, while his deputy Vincent Otti - who the LRA say is now dead - is charged
with sexual enslavement and ordering rape.
Investigators say that because the investigation was so narrowly focused,
sexual crimes were not given special attention.
"In retrospect, we should have done better on the thematic charges [for
systematic crimes committed by the LRA throughout the conflict], like sexual
crimes and use of child soldiers," said Witteveen.
He said that while rape and sexual enslavement were not specifically
investigated, evidence of these crimes was uncovered when investigators
interviewed girls in order to glean information about the incidents being
investigated.
During the interviews, the girls also told investigators about the sexual
violence they had suffered. A complex system of sexual enslavement emerged, he
said.
"Girls were not randomly dispersed among commanders, [they] were maids in
households, and then grew up in the ranks and given to the commanders for
sexual pleasure," said Witteveen.
"What they were allowed to do, what they were forced to do, and by what
age was perfected and written down - it was orchestrated, thought about and
laid out in rules."
It was only because investigators uncovered this evidence when pursuing other
leads that sexual crimes ended up on Kony and Otti's indictments.
But Le Fraper defended the prosecutor's policy, telling IWPR that it is
impossible to investigate for years and collect everything.
"During the analysis phase we collect [information from] open sources,
communications, reports by NGOs and out of that try to see what the period was
of most violence, and which region [suffered most]. Then we select a few
incidents and this is where the frustration comes from for investigators, and I
understand it entirely," she said.
"But we have to set the standards and the focus of the investigation, and
we can only select a few incidents; we need a good selection and cannot
investigate hundreds of similar incidents.
"[The procedure] is probably is not perfect and can be criticised, but at
one time, we need to settle on our incidents which [reflect] our own
evidence."
She said that focused investigations were central to the way ICC prosecutors
work.
Le Fraper says the ICC has learned lessons from cases at the international war
crimes tribunals that came before it, like the trial of former Serbian
president Slobodan Milosevic at the International Criminal Tribunal for the
former Yugoslavia, ICTY.
It took the tribunal six years to prepare three separate indictments against
Milosevic, covering crimes committed in Bosnia, Croatia and Kosovo over the
course of almost a decade. The accused died four years into the trial, before a
judgement could be passed.
In contrast, Le Fraper says du Hellen the ICC prosecutor's policy is to carry
out investigations in a few months, involving as few witnesses and incidents as
possible.
"In Uganda, it was a matter of drawing the balance between covering the
widest range of victimisation, which is one of the main guiding principles of
prosecutorial strategy, and conducting a focused investigation in a short time
to have charges ready against those we considered most responsible," she
said.
Chung agreed that it is not possible to investigate every lead.
"If this was the [office of the prosecutor's] practice, no sexual violence
victim would obtain timely justice," she said.
MISSED OPPORTUNIES
Ex-investigators say that a different approach to investigations could have led
to more extensive sexual violence charges being brought in relation to the
conflicts in DRC and Uganda.
Witteveen said that in Uganda, more evidence of sexual crimes could have been
gathered had the investigation been broadened.
"We interviewed a number of 'wives' (girls forced to live with senior LRA
men) but questions were focused on their relationship to commanders, not on
rape and sexual enslavement," he said. "We should not have limited
ourselves to this kind of witness - we should have widened it out to speak to
other victims of sexual violence."
He added that ICC staff missed the chance to reflect the allegedly organised
nature of sexual crimes committed by the LRA.
While sexual crimes feature on two of the LRA indictments, many observers say
that these in no way show the systematic and widespread sexual violence that
was a feature of the conflict.
Kony's arrest warrant, for example - which has been heavily redacted,
presumably to protect victims' identities - suggests that the sexual
enslavement charge against him relates only to one specific incident in 2003.
Brigid Inder, director of Women's Initiatives for Gender Justice, WIGJ, agrees
that an opportunity has been lost. According to her, each of the indicted LRA
commanders could have been charged with rape as a crime against humanity
because they were all active in overseeing and enforcing this act.
Observers say that failing to prosecute sexual crimes, when evidence exists
that they have been committed, sends a damaging message.
"This is dangerous, because it leaves out victims who feel unacknowledged
for the crimes they suffered, and gives the message that sexual violence crimes
are not crimes," said Binaifer Nowrojee, director of the Open Society
Initiative for East Africa.
She accused ICC prosecutors of taking a narrow approach to administering
international justice, by focusing on individual crimes in order to secure a
conviction, rather than prosecuting a wider range of crimes and establishing a
broader narrative of everything that happened.
But Le Fraper du Hellen maintains that the systematic nature of sexual crimes
has been covered in the charges against Kony, who she said is accused of
ordering the abduction of girls to distribute to commanders as rewards.
Meanwhile, Chung said the Uganda investigation focused on systematic sexual
crimes far more than any prior investigation brought in any other international
criminal tribunal.
However, she stressed that in order to charge each of the LRA officers with the
crime of sexual enslavement, active participation in and enforcement of a
criminal policy of sexual enslavement must be proven. Although proof of other
commanders' involvement emerged later, this was not adequately developed until
after prosecutors submitted their evidence to judges and requested arrest
warrants, she said.
Rights groups have also called for further charges to be brought against
Lubanga, condemning the decision to charge the militia leader solely in
relation to the use of child soldiers, and urging prosecutors to investigate
killings, rape and torture which they say have been perpetrated by all armed
groups in DRC.
Out of the same set of investigations in the Ituri district of DRC, Lubanga's
deputy, Bosco Ntaganda, was also charged with similar crimes to his chief -
enlisting, conscripting and using child soldiers to fight in the UPC. Like
Lubanga, he was not charged with crimes of sexual violence.
Inder told IWPR that the first series of investigations in Ituri failed to
bring charges for rape and other forms of sexual violence committed by militia
groups because they were poorly conducted and lacked rigour.
"The first investigations did not follow up on leads of sexual violence,
rape and sexual enslavement and failed to develop community relationships with
local women's NGOs who could have facilitated access to victims and
witnesses," she said.
She pointed out that the DRC is known internationally as having amongst the
highest rates of sexual violence crimes in the world.
"We documented over 112 cases of gender-based crimes in Ituri, of which 31
interviews related to the commission of sexual violence by the UPC," she
said.
Inder told IWPR that her team shared this evidence with prosecutors in August
2006, and passed on contacts of women willing to be interviewed, who were able
to identify commanders involved in attacks, and testify about the scale of the
sexual violence committed.
"[Prosecutors] ignored the information and have never investigated
gender-based crimes committed by the UPC," said Inder.
Former DRC investigators said their teams were keen to investigate sexual
violence and identify new leads within the confines of the incidents they were
tasked with investigating.
"We knew that during killings, rapes happened [but] the idea was that the
first ICC trial could not fail. To organise a good trial, the prosecutor
selected child soldiers as the only charge against Lubanga and to drop the
others. against the will of many investigators," said a former
investigator.
But Bernard Lavigne, who worked as an investigator on the Lubanga case - the
future of which is now uncertain following judges' ruling that prosecutors were
guilty of malpractice in their handling of evidence - said prosecutors had to
proceed with the charges for which they had the strongest evidence.
"To organise a good trial with solid evidence and witnesses, the prosecutor
selected the recruitment and use of child soldiers as the only charge against
Lubanga, and decided to postpone other charges," he said.
He added that the evidence collected relating to killings and sexual violence
did not meet the necessary legal threshold for bringing charges.
While former investigators told IWPR that they understood the concerns of
pressure groups, they said that evidence emerged to suggest that within
Lubanga's UPC, rapes were opportunistic, not ordered by commanders, and that
perpetrators were punished.
"Nothing was found in our investigations to confirm that orders were given
to humiliate through rape. If we'd found leads, we would have immediately
investigated further," said one former investigator.
Chung cited the particular difficulties involved in investigating and pursuing
sexual violence charges in the DRC.
"Finding the victims who can help you link the highest commanders to the
rapes and enslavement that happened at the times and places that are the focus
of the investigation is very difficult," she said.
Former investigators agree that sexual violence crimes are extremely difficult
to prove because victims are often reluctant to testify.
Rape victims, who are stigmatised by their communities following an attack, can
often suffer further by testifying. They could also be at risk of retributive
violence from the militias or government troops against which they give
evidence.
"Protecting sexual violence victims. has special complications because
they are highly identifiable. In the DRC, the perpetrators and their friends
are still active," said Chung.
Chung said that other investigations in the DRC - into the National
Integrationist Front, FNI, militia headed by Germain Katanga and Mathieu
Ngudjolo Chui - had led to charges of sexual violence crimes.
Following arrest warrants issued in July, judges confirmed in September that
there was enough evidence to support sexual slavery and rape charges against
both men for crimes committed during an attack on Bogoro in February 2003.
Chung, who was one of the prosecutors directing this investigation, said that
from the outset, the aim was to try to include sexual violence crimes in the
application for arrest warrants.
"We conducted missions specifically devoted to interviewing sexual
violence victims and we were helped a lot by NGOs who were willing to share
information," she said.
Le Fraper du Hellen said that overall, she and her colleagues were satisfied
that they had properly emphasised sexual violence investigations and succeeded
in bringing representative charges.
Chung agreed, saying, "Overall, I believe the [office of the prosecutor]
has done well in making sexual violence a priority and bringing charges that
represent the scope of sexual violence."
"Sexual violence crimes are adequately represented, and ICC cases reflect
more representation [of crimes committed] than has been achieved at any of the
other tribunals. Of course they will continue to build on lessons
learned."
SEXUAL VIOLENCE CHARGES TOO LIMITED
Many commentators still maintain that the ICC should not only bring greater
numbers of sexual violence charges against suspects, but also charge them with
more specific crimes. They say that this is possible under the court's founding
Rome Statute, in which sexual slavery, enforced prostitution, forced pregnancy
and enforced sterilisation have been set out as prosecutable offences for the
first time under international law.
Nowrojee told IWPR that the term "rape" does not adequately capture
the range of violations directed at women. She said that prosecutors must take
a broader approach to prosecuting various types of sexual violence, not just
rape in the narrow sense of vaginal penetration.
"Prosecutors need to have a clearer sense of where the line is drawn between
rape versus sexual mutilation, sexual slavery, enslavement and forced
marriage," she said.
However, Chung says that instead of pushing for more varied sexual crimes
charges to be brought at this stage, campaigners should instead be calling for
the arrest of war crimes fugitives wanted by ICC. Currently only four ICC
indictees - out of a total of 12 - are in custody in The Hague.
"The problem needing desperate attention is the fact that not even one of
the LRA's sexual violence victims is likely to have a day in court. Victims
should be advocating for arrest and trial rather than seeking to add
allegations to a piece of paper that, as any good prosecutor should tell you,
proves nothing by itself," she said.
"In the LRA case, we can add more charges, including a sexual violence
charge, if someone gets arrested."
Le Fraper du Hellen said that her team would not hesitate to bring additional
charges against the LRA commanders once the suspects are brought to court, if
there is evidence to support this.
She added that prosecutors were following with interest the ground-breaking
work of their counterparts at the Special Court for Sierra Leone, SCSL, who are
the first to charge suspects with forced marriage, saying this crime accurately
described the experience of Sierra Leonean women kidnapped by soldiers and
rebel groups.
Observers say this charge could adequately reflect the experience of girls
conscripted into militias during other conflicts, including the LRA insurgency.
Le Fraper Du Hellen said at the time when the arrest warrant application was
made in the LRA case, prosecutors knew the LRA called the girls
"wives", but this was not evidence that forced marriage had taken
place. Yet she added that ICC prosecutors now had more evidence in their files,
leaving open the possibility that the further charges, including that of forced
marriage, could be brought following the arrest of the suspects.
ADVANCES MADE IN TACKLING SEXUAL VIOLENCE CRIMES
Prosecutors at the court argue that they are working hard to support
investigators pursuing evidence of sexual violence crimes.
In August 2004, they set up a dedicated Gender and Children's Unit to advise
investigators and trial lawyers how to investigate and prosecute crimes of
sexual violence.
The head of the unit, Gloria Atiba-Davies, said her team is involved from the
analysis stage when the court receives information from states, the
international community or NGOs about grave crimes of sexual violence. The unit
offers investigators training before they are deployed, and organises cultural
awareness sessions for each particular country.
ICC prosecutors say that since the court was established, they have made great
progress in pursing sexual crimes, and point out that the charging strategy has
become stronger and more descriptive.
A major step forward came in July, when ICC prosecutors asked judges to indict
Sudanese president Omar al-Bashir for conducting genocide in Darfur, in part
through a campaign of rape - the first time the court has attempted to prosecute
the crime in this way.
Prosecutors accused al-Bashir of organising the destruction of the Fur, Zaghawa
and Masalit communities in Darfur through rape, fear and hunger. Three months
earlier, ICC judges issued arrest warrants for Sudanese minister Ahmed Harun
and janjaweed militia leader Ali Kushayb, for 51 counts of war crimes and
crimes against humanity, including the charge of rape.
To prosecute rape as genocide, prosecutors need to prove the intention to
destroy a group in whole or in part. Le Fraper du Hellen said that rape was an
integral part of attacks on Fur, Masalit and Zaghawa villages.
In their application to judges for an arrest warrant against al-Bashir,
prosecutors sought to show that rape was systematic.
"[Government-backed janjaweed] didn't need to kill people in the camps,
but surround the camps and wait for the women to come outside, and rape them
and let them go back to tell the stories. Over five years, they can destroy the
group," said Le Fraper du Hellen.
"This is systematic targeting of a specific group, and shows the intent to
destroy."
Sexual violence charges also feature heavily in the indictment of former DRC
vice-president Jean-Pierre Bemba, who is charged with six counts of crimes
against humanity and war crimes, including rape, in relation to events in CAR.
Bemba, the latest suspect to be indicted at the ICC, is accused of
orchestrating rape as a crime against humanity and a war crime; torture; and
outrages upon personal dignity, in particular humiliating and degrading
treatment, again in relation to sexual violence.
Inder said that these are strong charges, and when considered in tandem with
the explicit charges of rape as a crime in and of itself, they reflect both the
purpose and impact of the use of sexual violence in the armed conflict.
Le Fraper du Hellen said that during the CAR investigation, prosecutors
overcame an initial hesitancy to initiate a case which featured more sexual
violence charges than killings.
Although preliminary evidence gathered from local NGOs and international
organisations showed a massive campaign of rape, analysts and investigators
were not initially certain whether the rapes and sexual violence crimes
committed were numerous enough and grave enough to constitute crimes against humanity
and war crimes.
Prosecutors, apparently, had no hesitation, based on the evidence, that the
campaign of rape met the necessary legal threshold, according to Le Fraper du
Hellen.
They worked with community groups in the country to show that prosecuting rape
was high on the ICC's agenda.
"When [Chief Prosecutor Luis Moreno-Ocampo] visited CAR, some women's
associations wanted to show him mass graves, but he was interested in how rape
was dealt with and whether records of the attacks were kept," she said.
Prosecutors say they are proud of their decision to prosecute rape extensively
in relation to CAR, recognising that in certain circumstances the crime is also
an act of torture and an outrage upon personal dignity.
"Rape of a little girl for one hour in a village is rape, and it is
torture. A local leader raped for a very long time and publicly is a case of
rape requiring additional charges of torture and outrages upon personal
dignity," said Le Fraper du Hellen.
INCREASED COOPERATION WITH LOCAL COURTS
As investigators prepare to launch their long-awaited investigation in North
and South Kivu in the east of DRC, they are planning an initiative which will
see them work with local courts to support sexual violence prosecutions of
lower-level suspects.
Observers say this decision to cooperate with the local judiciary is long
overdue.
A recent survey by the International Centre for Transitional Justice, Berkeley
University's Human Rights Centre and the Payson Centre for International
Development confirmed the prevalence of sexual violence as a tool of conflict
in the Kivus.
Moreno-Ocampo said that ICC investigations of these crimes will aim to support
the national justice system by sharing evidence with local judges.
As the court's investigators gather evidence against those believed to be most
responsible for the most serious crimes, they will also identify lower-level
suspects and build up dossiers of evidence against them for use in local
trials.
Announcing this new strategy at a gender justice conference in The Hague in
July, prosecutors acknowledged there would be associated problems, including
how to go about protecting witnesses.
In spite of this, investigators say this should have been implemented sooner.
Lavigne said it was a "mistake" not to hand over to the local
judiciary evidence of sexual violence crimes gathered in the Lubanga
investigation, after ICC prosecutors decided to focus exclusively on charges
relating to child soldiers.
"It is a pity that we didn't hand over evidence [so local courts could
organise sexual violence trials]," he said. "Thanks to our resources,
we collected forensic evidence that could have been useful for them, but the
prosecutors were not interested in handing it over."
But prosecutors said that safety and security were sticking points, and
stressed that handing over evidence would require enhanced protection for
witnesses and the judiciary.
"[An] assessment [is required] to decide whether and how to turn
information over to national authorities. There are usually concerns about
witness protection, for example," said Chung.
The Congolese justice system is in dire need of help, with both the military
and civilian branches plagued by lack of resources, corruption and insufficient
independence from government.
Lavigne says a relationship with the ICC could raise the standard of local
trials, and persuade renegade militias and corrupt government officials to
start respecting the rule of law.
However, other former investigators say any arrangement must be carefully
planned to avoid already over-stretched ICC investigative teams being spread
even more thinly.
Katy Glassborow is an IWPR international justice reporter in The Hague.
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