By Katy Glassborow in The Hague (AR No. 113, 24-May-07)
Launching an investigation into crimes committed following a failed coup attempt in the Central African Republic in 2002, prosecutors from the International Criminal Court announced that their initial findings had revealed widespread instances of crimes of sexual violence.
Chief Prosecutor Luis Moreno-Ocampo said the court would be looking into the violence that followed a coup attempt by former army chief François Bozizé in October 2002.
The then president of the Central African Republic, Ange-Felix Patassé, brought in allies from the Democratic Republic of Congo, DRC, Chad and Libya, and initially drove the rebels back.
ICC prosecutors say the worst allegations of killing, looting and rape date from this phase of the conflict - October and November 2002 - and also from February and March the following year, when Bozizé's forces turned the tide and eventually ousted Patassé. Bozizé remains president of CAR.
The International Federation for Human Rights, FIDH, has conducted extensive research in CAR, and says fighting in the capital Bangui was conducted in "flagrant violation" of the Geneva Conventions, including reprisals by pro-Patisse forces directed against the rebels but mainly affecting the civilian population.
Commanders from outside CAR, including Jean-Pierre Bemba from DRC and Abdoulaye Miskine from Chad, are believed to have played a significant role in the 2002-03 conflict. Weakened by previous coups attempts and suspicious of his own army, FIDH reports, Patassé surrounded himself with the militia forces of Bemba and Miskine.
FIDH has collected evidence of mass graves in which the "victims [were] likely to be civilians", and asserts that war crimes were perpetrated by troops commanded by Bemba and Miskine. The group has urged the ICC to look into whether Bemba, Miskine and Patassé himself bore individual criminal responsibility for abuses.
Marceau Sivieuve from FIDH told IWPR that a year after Bozizé came to power, the authorities in CAR launched proceedings against Patassé and 15 commanders who had provided him with firepower, including Bemba and Miskine.
Shortly afterwards, CAR judges recommended that since the local judicial system would not be able to cope with crimes of this magnitude, they should be referred to the ICC. In light of this, the CAR government referred the situation to the ICC in December 2004.
In April 2006, the country's highest court of appeal confirmed that CAR's judicial system was unable to investigate and prosecute these crimes.
According to media reports, Bemba maintains his innocence and is in favour of an ICC inquiry, while ex-president Patassé - now living in exile in Togo - has told reporters he was willing to testify before the international tribunal.
As ICC prosecutors embark on collecting evidence relating to 2002-03, they have stressed that "investigations are not targeting any particular suspect at this stage".
CAR CASE DOCUMENTS HIGH INCIDENCE OF RAPE
Prosecutors say a distinctive feature of the allegations they have come across in CAR is the high reported number of victims of rape - at least 600 identified in a period of five months, while the real number may well far exceed this.
On May 22, Prosecutor Moreno-Ocampo said the "allegations of sexual crimes are detailed and substantiated. The information we have now suggests that the rape of civilians was committed in numbers that cannot be ignored under international law"
According to prosecutors, women were raped in public, attacked by multiple perpetrators, raped in the presence of family members, and abused if they resisted attacks.
They indicate that rape has been committed against innocent elderly women, young girls and men.
Following criticism that crimes of sexual violence have not featured heavily in arrest warrants for suspects from the other areas where the ICC is working - Uganda, DRC and Darfur - prosecutors stressed that sexual crimes far outnumber killings in CAR.
Brigid Inder, director of Women's Initiatives for Gender Justice, WIGJ, told IWPR that her group sent a mission to CAR in May 2006 to consult with women's organisations and survivor groups. All of them, she said, were "supportive of the ICC, and wanting prosecutions for crimes committed during the 2002 and 2003 period".
However, Inder stressed that the widespread commission of sexual violence is by no means specific to CAR, but is in fact a "common factor of all the situations - Uganda, DRC and Darfur - before the ICC, where rape has been used in each conflict".
What is unique to CAR is the level of evidence compiled by local women's organisations, which documented over 1,000 instances of rape - and handed these accounts over to ICC prosecutors, who deemed 600 of them valid. These files enabled the court to establish evidence of a pattern of sexual violence.
"Women organise themselves in response to crisis and their own experiences of crimes of sexual violence," Inder told IWPR. "There are groups in CAR dedicated to being trusted community-based places, where women can go to tell their stories".
ICC RULES ENABLE PROSECUTIONS OF SEXUAL VIOLENCE CRIMES
Encouraged by the successful conviction of Jean-Paul Akayesu at the International Criminal Tribunal for Rwanda in 1998, for encouraging the rape and sexual mutilation of Tutsi women during the 1994 genocide, the ICC sought to incorporate gender-neutral definitions of rape into its founding principles.
Under the Rome Statute which governs the workings of the ICC, suspects can be prosecuted for committing rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation or any other form of sexual violence against women and men.
ICC prosecutors said the accounts of sexual violence in CAR that they have received often feature "aggravating aspects of cruelty", such as multiple perpetrators, and the forced participation of family members.
"These victims are calling for justice," said Moreno-Ocampo.
Geraldine Mattioli of Human Rights Watch told IWPR that ICC prosecutors have a "nuanced way of analysing the gravity of crimes", and that the number of killings is not the only measure.
Human rights organisations have recommended that the perception and impact of crimes should be factored in when weighing up their gravity. Mattioli stressed that crimes of sexual violence are humiliating, leading to rejection from communities and possible infection with the HIV virus.
According to Mattioli, the fact that prosecutors have not accused anyone of crimes of sexual violence in DRC is a "big omission". She says rape was used in eastern Congo as a "systematic way of terrorising the civilian population".
Thomas Lubanga Dyilo, the only person now detained by the ICC and the sole person indicted in the DRC case, faces charges that deal exclusively with the alleged conscription of child soldiers into his Union of Congolese Patriots militia.
Mattioli says the consequence of neglecting to prosecute crimes of sexual violence is that "rape is now being perpetrated by civilians such as demobilised child soldiers, who saw rape occurring habitually". As a result, the persistence of rape has "gone beyond the armed conflict, and permeated into a pattern of conduct in the population".
She argues that prosecutors working for the DRC's own judicial system need to be set an example of prosecutions of crimes of sexual violence.
OMISSION LEAVES CHARGES "INCOMPLETE"
WIGJ has campaigned for the world's first permanent war crimes court to pay close attention to sexual violence, suggesting that the omission of charges of this kind from the arrest warrants issued for Uganda, DRC and Sudan means those indictments are incomplete.
Inder told IWPR that sexual enslavement is taking place in the Darfur region, but neither "Janjaweed" militia leader Ali Kushayb nor Sudanese minister Ahmad Muhammad Harun have been indicted for this crime.
Prosecutors suspect the two men of orchestrating mass rape as a war crime, a form of persecution and a crime against humanity, but Inder is disappointed the charge of sexual enslavement is missing, as she feels there is overwhelming evidence.
In Uganda the ICC has four arrest warrants pending for the leaders of the rebel Lord's Resistance Army, LRA, operating in the north of the country, but only two - LRA leader Joseph Kony and his deputy Vincent Otti - have been charged with rape as a war crime and crime against humanity.
"All the LRA commanders could be charged with rape, as they were all commanding soldiers to attack villages and abduct and rape girls."
In Inder's view, this amounts to "incomplete charging".
Given that prosecutors have opened the CAR investigation with a strong statement about crimes of sexual violence, Inder expects to see some "very solid and full charges for rape and sexual violence charges against individuals".
A LONG WAIT FOR JUSTICE
Some human rights organisations like FIDH are frustrated that it has taken four years since the end of the 2002-03 conflict for ICC prosecutors to open an investigation.
ICC prosecutors can only intervene if national justice systems are 'unwilling or unable' to deal with cases, and must verify the ability of domestic courts before instigating proceedings.
Officials in CAR first referred the situation to the ICC in December 2004, telling prosecutors that information on the alleged crimes and the national prosecutions undertaken thus far would be transferred to The Hague within three months.
The information arrived only in June 2005. After that, ICC prosecutors looked into the local prosecutions, and decided that although CAR authorities were unable to collect evidence and detain the accused, they must await the national appeals court's decision before ruling on whether the ICC should take it on. The CAR appeals court only issued its decision in April last year, giving ICC prosecutors the green light to move forward.
In September last year, the CAR government alleged that prosecutors had failed to decide within a reasonable time whether to initiate an investigation, and urged the court to "take measures to preserve evidence [and] protect the victims".
In December, prosecutors said the CAR situation presented challenges different to those encountered in previous cases because of the need to assess local proceedings and also because the deteriorating security situation in the north of the country made access to information difficult.
Preliminary examinations of the situations in the DRC and northern Uganda were completed within two to six months of receiving referrals.
Moreno-Ocampo has said that due to the "limited resources and particular procedures and requirements of some of the parties who provided information, this process has sometimes been slow".
He has told the New York Times that he expects the investigation into allegations relating to CAR to take 18 months.
ICC MAY LOOK AT POST-2003 VIOLENCE
Whilst the ICC focused on crimes committed during 2002 and 2003, Moreno-Ocampo has pledged to gather evidence about crimes committed in northern CAR since violence flared there at the end of 2005.
Prosecutors have noted that their investigation into past crimes is taking place in the context of a continuing lack of security and deteriorating humanitarian conditions in CAR, and they are aware of "worrying reports" of fresh violence spilling over the northern borders with Chad and Sudan.
Since 2005, Bozizé's government has been fighting two rebellions in the north of the country. Human Rights Watch says government forces have perpetrated serious abuses against civilians, including extrajudicial executions and destruction of villages. According to FIDH, former president Patassé is behind one of the insurgent groups.
Katy Glassborow is an IWPR reporter in The Hague