Blind Spot

Why do convictions for the world’s worst crimes neglect survivors of rape?

The village of Bogoro, in the Democratic Republic of Congo, is a place swathed in green, dusted with orange earth, and studded with gold deposits. In the early morning of Feb. 24, 2003, at least 200 people in Bogoro were massacred by the Patriotic Resistance Forces of Ituri, or FRPI, a rebel group headed by a man known as Simba ("lion" in Swahili). When they weren't shot, victims were allegedly sliced with machetes -- a mode of killing, also used in the Rwandan genocide, which saves precious bullets. In the course of the Bogoro massacre, as in so many mass atrocities in Congo's never-ending conflict, women were also raped; some were even taken as sexual slaves.

But unlike in most cases of inhumane acts carried out against Congolese civilians, there was a chance for justice this time. Germain Katanga, the now 35-year-old former leader of the FRPI, was brought to the International Criminal Court (ICC) in 2007 and tried on charges of murder and attacking civilians. He was also charged for acts of rape, sexual slavery, and the use of child soldiers by his troops.

On Friday, March 7, Katanga was found guilty as an accessory on charges of one crime against humanity (murder) and four war crimes (murder, attacking a civilian population, destruction of property, and pillaging). But he was acquitted of charges pertaining to sexualized violence.

It is hardly the first or the last time someone in Congo, or Africa, or the wider world, has walked away from charges of rape that appeared to have occurred under his watch.

Understandably, the global community of advocates working to end sexualized violence is tired of seeing warlord after warlord get away with rape but not with murder. Justice for crimes against women always seems to come last in the long, slow line of convictions and reparations for the world's worst abuses, handed out like crumbs of bread.

In a statement, Brigid Inder, the executive director of the Women's Initiatives for Gender Justice, an international organization advocating gender-inclusive justice both at and through the ICC, called the Katanga decision "devastating" for the victims of the Bogoro attack and other attacks by Katanga's militia. And in an interview, Jody Williams, a Nobel laureate and chair of the Nobel Women's Initiative, said that while Katanga's conviction for war crimes is a "step forward for those who seek to repair divisions within the Democratic Republic of Congo, justice has once again been denied to survivors of sexual violence perpetrated by Katanga's forces."

"Katanga's acquittal on charges of rape and sexual slavery sends a chilling message to survivors of rape and gender violence worldwide," Williams added.

Chilling yes, but also inevitable, given the legal interpretation of a certain form of accomplice liability under the Rome Statute, the ICC's governing document. So said Patricia Sellers, a former legal advisor for gender at the tribunals set up for the former Yugoslavia and Rwanda and a fellow at Oxford University in international criminal law, in an interview after the Katanga verdict was issued.

ICC prosecutors framed the massacre, including the rape and sexual slavery, as one that was supposed to "wipe out" the population of Bogoro. In the final judgment, however, the sexualized crimes were considered to be "opportunistic" -- happenstance to the larger plan to flatten the village. Under the Rome Statute, the ICC cannot convict a militia leader for indirect perpetration of "inevitable" or foreseeable crimes like rape that aren't obviously planned. Moreover, the tribunal found that while Katanga was the militia's leader, he wasn't liable for all his troops' crimes, partially because the organization didn't have a strong central command structure. (Think of it like this: The president of Ford Motor Company isn't necessarily liable for accidents due to defects in his cars produced by a bunch of guys at a single factory.)

"The legal interpretation of indirect responsibility under the Rome Statute does not allow for liability for crimes outside of what the chamber held to be the common plan [to overrun the village] -- in this instance, the sexual violence," Sellers said. "They couldn't convict based upon their factual findings and their interpretation of the liability provisions of the Rome Statue."

Rape, in other words, is still seen at the ICC as an opportunistic consequence of war, not something potentially predictable -- a blind spot on the part of the court. This view also falls somewhat behind the legal curve, in comparison to the International Criminal Tribunal for the former Yugoslavia and the one for Rwanda (the ICTY and ICTR, respectively), which use international customary law (broader than the provisions of the Rome Statute) to make their decisions. Sellers pointed out that the recent appellate cases of Djordjevic and Sainovic at the ICTY reversed acquittals on rapes and sexualized violence, "holding that they were the natural and foreseeable consequences of attacks against a Kosovo population in those cases." 

"As much as people say 'rape is a weapon of war,' it's not like people write manuals on how to rape," Sellers said, explaining how the lack of so-called hard evidence creates legal barriers to justice. "Under certain circumstances, it's a natural, foreseeable consequence of taking over a town. That's what the ICTY and ICTR have taken into account."

Of course, sexualized violence in a war context can be carefully thought out, as in the "rape camps" of the Bosnian war, or it can be unexpected and suddenly inflicted. And scholars have found that it certainly isn't always inherent to conflict. But, as Sellers noted, sexualized violence can also become a predictable pattern in a conflict's structure, and should be recognized as such, when it happens, by the ICC and other courts.

Women's rights advocates are frustrated by the lack of international convictions for rape, especially given the long, slow road they've had to travel to even put sexualized violence on the world's roster of the worst crimes deserving of punishment. (Rape was only acknowledged as a crime against humanity in 1998 in the Akayesu case at the Rwanda tribunal.) "How is it that survivors of rape can have their attack acknowledged by the international community while at the same time justice does not apply?" asked Williams.

Survivors of the Bogoro massacre and others like it in Congo are certainly unlikely to find justice at home. Impunity still reigns in the "rape capital of the world" nearly two decades into the country's war. Multiple survivors of sexualized violence recently told me during a reporting trip that they had no reason to go to the police or courts because "nothing will be done."

(According to Amnesty International, the Katanga case "relates to only a very small fraction of the crimes under international law committed in the DRC over the past years," yet the decision can now be used to "focus the DRC authorities on addressing the enormous 'impunity gap' for egregious crimes committed against its people.")

Advocates tend to agree that not enough has been done when it comes to mass sexualized atrocities against both women and men in war -- and not only in Congo. Consider Syria, where crimes, including rape, have been widely documented yet no one knows how to move forward on prosecuting perpetrators. The U.N. Security Council is currently deadlocked on a referral for human rights violations to the ICC because Russia won't support a vote, but even if cases make it to The Hague, there's no guarantee that victims of rape will get a fair deal.

We know that people who are raped need justice. We know theoretically how to get it. Yet the international legal system is lagging behind.

In acknowledging that sexualized crimes occurred but not convicting for them, Sellers said, the Katanga case gave "less than half an inch" in the ongoing struggle to make sure that victims of rape in conflict are recognized and heard, and their aggressors punished. "Energies need to go into looking at how, factually, sexual violence occurs," she said, "and the gendered nature of how we interpret modes of liability."



In the Battle for Crimea, China Wins

How Beijing stands to gain from Russia's invasion of Ukraine.

Awkward does not begin to describe it. Every time Beijing has been asked for its view on the Russian intervention in Ukraine, it has fallen back on tortuous formulations. On March 2, the day after Russian troops started fanning out across Crimea, the Chinese Foreign Ministry noted: "There is a good reason for why events in Ukraine have progressed to where they are today." On March 3, Liu Jieyi, China's permanent representative to the United Nations, said "there are reasons for why the situation in Ukraine is what it is today." Later in the week, while the U.N. Security Council was locked in debate over Ukraine, China's Foreign Ministry spokesman Qin Gang declared: "There are reasons for today's situation in Ukraine."

So, that's clear, then.

It is not hard to understand why China feels itself in a tight spot over the situation in Ukraine, where Russia has responded to the collapse of the presidency of its ally Viktor Yanukovych in late February and the formation of a new, pro-Western government by exerting Russian military control over the Crimean peninsula. One of the basic tenets of Chinese foreign policy is non-interference in the domestic business of other countries, which provides a barrier against their meddling in its own affairs and a way of floating above some of the world's more difficult trouble spots without getting sucked into messy political disputes or taking on new responsibilities. China is also allergic to separatist movements within countries. If Crimea can be allowed to vote for independence, why not Tibet?

China and Russia may have been estranged during the latter part of the Cold War, and only resolved their own tense border issues in 2008, but the two nations have long found common cause over the issue of state sovereignty. For the last decade, Russia and China have often tag-teamed at the U.N. to block Western busybodies from getting involved in smaller countries' internal crises. In the 2000s, when China was defending Sudan against Western criticism over Darfur, Russia provided political cover. Over the last three years, China has backed up Russia in its efforts to keep the U.N. from pressuring the Assad regime in Syria. Yet, today, China's usual partner in defending the inviolability of state sovereignty is the very country whose troops are now controlling Crimea.

And a prolonged crisis in the Ukraine could be bad for the global economy, especially if there are sanctions and counter-sanctions between Russia and the West, just at a time when China's own economy is slowing. No wonder China's responses have been so convoluted.

Yet behind the equivocations and diplomatic parsing, there are several ways in which the Ukraine crisis could work out very well for China. In terms of both grand strategy and tactics, the showdown in Ukraine has the potential to play into China's hands.

For the United States, one of the big long-term risks is that Ukraine ends up pushing Russia and China much closer together -- a shift in the geopolitical tectonic plates that would have a long-lasting impact. Sensing itself under pressure in Asia over the last two years, Beijing has been casting around for political support. The first foreign trip that Xi Jinping made on taking over as China's president in March 2013 was to Moscow. And since he returned to office nearly two years ago, Russian President Vladimir Putin has been happy to play nice with China as he indulges his anti-Western posturing. In October, the two countries signed a large number of energy deals, including an agreement for Russia to supply $85 billion of oil; after years of talks, they are also getting close to an agreement on a major gas pipeline. Beyond the booming business ties, both countries believe that chipping away at the foundations of U.S. power serves their interests.  

One of Washington's long-term geopolitical priorities should be driving a wedge between Moscow and Beijing, to prevent the development of a stronger relationship. Yet an Obama administration campaign to isolate Russia economically and diplomatically would almost certainly invite Putin to look to Beijing for political support. Dmitri Simes, president of the Center for the National Interest in Washington, has even predicted that the Ukraine crisis could lead to China and Russia signing a security agreement.

At a more mundane level, the Ukraine crisis also means that U.S. President Barack Obama is almost inevitably going to have less time to devote to his Asia pivot -- his strategy for dealing with a rising China. After much fanfare on its launch in 2011, including Obama's announcement that the United States "is here to stay" in the Pacific during a trip to Australia, there has been plenty of criticism in the region that the administration has been distracted by the fire-fighting it has been doing in the Middle East. John Kerry has traveled five times to the region since becoming secretary of state in Feb. 2013, but he has made more than double that number of trips to the Middle East during the same period. The cancellation of Obama's October 2013 Asia trip because of the government shut-down was a major own-goal. For months, the Chinese have been telling their neighbors that the unreliable United States has once again become less interested in the region.

In the weeks before the Russian intervention in Crimea, the administration has been consciously trying to up its game in Asia, ahead of Obama's April visit to Japan, South Korea, Malaysia, and the Philippines. In February, Danny Russel, assistant secretary of state for East Asia, said China had "created uncertainty, insecurity and instability in the region" by its behavior in the South China Sea. Yet if Russia annexes Crimea, and is seen to not pay too high a price, some in China will take that as a green light to push their own territorial claims even harder. If Putin can call the West's bluff, what's to stop China?

That said, there is nothing inevitable about a closer Sino-Russian alliance. As China's influence grows, Russia could end up seeing Beijing as much as a rival as a partner. Putin's Crimea incursion is motivated by his desire to protect Russia's sphere of influence to its west, where it feels under threat from Europe. But he is also intent on maintaining Russian influence in Central Asia, where China is the long-term challenger. Over the last five years, Chinese presence in Central Asia has increased dramatically, the product of huge energy deals, extensive oil and gas pipelines, and financial support. During Xi's September visit to Kazakhstan -- the Central Asian nation that is also part of Putin's Eurasian Union -- he opened a new natural gas pipeline to China, formalized a $5 billion Chinese investment in the project, and signed business deals worth $30 billion. Russia's southeast flank is just as vulnerable as its western one.

Russia also worries about Chinese migration into eastern Siberia and about Chinese naval intentions in the northern Pacific and Arctic region. Even as Moscow and Beijing have been growing closer over the last two years, Russia has also been improving ties with Japan and they have been holding quiet talks over Pacific Ocean islands disputed by both countries.

The power dynamics of China and Russia are also very different. China's ambitions are those of a great power on the rise: the Crimea takeover is the lashing out of a leader trying to hang on to some leverage in Ukraine that is rapidly disappearing. The last thing Putin wants it to play second fiddle to Xi, the way Britain does to the United States.

But overall, the situation looks promising for Beijing. Even if the situation in Ukraine is resolved relatively quickly and U.S. relations with Russia do not completely fall apart, Obama will now spend a lot more of his time in office focusing on Europe; trying to boost the relationship with Germany and reassuring allies in Eastern Europe who have felt neglected. The administration will claim it can manage all these issues, but top-level attention to Asia will drop. The pivot will suffer as a result of Ukraine -- and that, among other things, is a win for Beijing, even if you would not realize it from the tortured way China talks about the crisis.