Background of Sexual and Gender-based Violence in Sudan
The United Nations reported that on 15 April 2023, the capital of Sudan, Khartoum, saw the start of armed conflict between the Rapid Support Forces, which was originally created by former Sudanese President Omar al-Bashir (Bashir), and soldiers from the Sudanese Armed Forces. These events in Sudan have once again brought into focus the question of how the International Criminal Court (ICC) should approach reparations for sexual and gender-based violence (SGBV).
SGBV against women has been a pervasive theme throughout the recent conflicts in Sudan. This is reflected in several ICC cases such as Ali Kushayb and Bashir. The Office for the Coordination of Humanitarian Affairs (OCHA) found that at the start of the recent conflict in Sudan on 15 April 2023, an estimated 3 million women and girls were at risk of SGBV (inclusive of intimate partner violence). In July 2023, the OCHA estimated that this figure increased to 4.2 million, with the UN Population Fund reporting a further growth to 6.2 million as of May 2024. But justice in Sudan can be hard to find given Sudan’s ‘turbulent political transition’ in recent years and a ‘lack of political will and the absence of an independent judicial system further contributed to entrenching total impunity, particularly for those most responsible for serious crimes’.
Due to the dysfunction of the domestic justice system in Sudan, the possibility of the ICC providing justice to victims of SGBV assumes even greater importance. Liesbeth Zegveld highlights, ‘with the establishment of the ICC, for the first time in history, individuals can submit claims of a private law nature to an international court’. Through a comparative analysis of international human rights law and transitional justice mechanisms, it is argued that the ICC should continue to develop jurisprudence that considers the compounding factors of harm affecting victims of SGBV, when assessing the perpetrators liability. This will ensure that reparations more accurately reflect the full extent of the harm caused to victims. Further, this will assist in bridging the gap between the expectations of victims and the reparations they receive, without detracting from the criminal prosecutorial function of the ICC.
Criminal Responsibility and its Impact on the Reparations Awarded by the ICC
Article 75(2) of the Rome Statute of the International Criminal Court allows the ICC to make an order for reparations ‘directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation’. In Lubanga, the ICC ruled that reparation orders must not go beyond the crimes for which the perpetrator is convicted and can only be awarded to those who are recognised as victims by the ICC. Katanga similarly recognises that reparations proceedings are ‘remedial and not punitive’. As such, the extent of reparations awarded is directly related to the scope of the conviction.
The approach of the ICC as demonstrated in cases like Katanga and Lubanga contrasts with the broader approach to reparations by human rights courts like the IACtHR, which awards reparations against the state to remedy the harm caused to victims without limiting them to the criminal liability of an individual. The IACtHR’s approach reflects the usual position of transitional justice, whereby the state and the perpetrator are both liable for violations of international human rights law. This poses an added dimension of difficulty for the ICC, as unlike other international human rights courts, the rulings of the ICC do not impose a direct obligation on states to implement reparations.
Although Lubanga held that the indigence of the perpetrators does not impact their liability, it is often the case that there are difficulties in tracing and recovering assets. This is particularly important in the context of reparations, as tracing and seizing assets is imperative to providing financial resources to the ICC so that it may provide adequate reparations to victims.
In Bemba, Jean-Pierre Bemba was in possession of a broad portfolio of assets, some of which had been frozen by the ICC in the exercise of its powers to take protective measures under Article 57(3)(e) of the Rome Statue. Although Jean-Pierre Bemba was found not to be indignant, there were difficulties in retrieving some of these valuable assets. Whilst the power to trace and seize assets is a crucial instrument in the restorative aims of the ICC, there needs to be greater consideration of how the ICC will cooperate with states to implement seizure orders so as to assist in funding reparations for victims.
The ICC in Lubanga, in recognising the success of the Court was tied to the success of its reparations mandate, requested ‘cooperation to all States Parties to identify, trace, freeze or seize the property and assets of Mr Thomas Lubanga Dyilo at the earliest possible opportunity…’. This is in line with Article 109(1), which obliges states to give effect to fines ordered by the ICC. Article 109(2) states that if a ‘State Party is unable to give effect to an order for forfeiture, it shall take measures to recover the value of the proceeds…’. This will require the action of national courts to implement these orders. Redress highlights that neither the Rome Statute nor the Rules of Procedure and Evidence explicitly identify the body that is to be responsible for monitoring the progress of reparations claims once the awards have been made by the ICC. Redress advocates for the greater involvement of the Office of the Prosecutor at this stage and for it to take a more proactive approach in identifying assets and seeking cooperation from states. Further, for the continued involvement of the Victim Participation and Reparations Section and the Public Council Unit for Victims to ensure that victims have the appropriate legal representation throughout the enforcement stage. These measures will assist in ensuring that states meet their obligations under the Rome Statute and the benefits of reparation orders made by the ICC are realised by the victims.
Such recommendations are useful, as a lack of financial resources to provide adequate reparations can result in a disconnect between the expectations of victims and the reparations they receive and as such it is crucial that all the aggravating factors of harm are appreciated. This will assist the ICC in maximising the effectiveness of the reparations that are granted.
Employing an Intersectional Framework in the Assessment of Reparations
Oxford law professor Sandra Fredman highlights the utility of an intersectional approach where a ‘person who is discriminated against on grounds of her race might also suffer discrimination on grounds of her gender, her sexual orientation, her religion or belief, her age or her disability. Such discrimination can create cumulative disadvantage’. These compounding factors of harm affecting victims of SGBV are evident in the cases before the ICC.
The ICC has evolved significantly in its ability to consider intersecting factors when assessing the level of individual criminal responsibility of perpetrators, and as such, the appropriate extent of reparations. This is displayed by the first publication of the ICC Policy Paper on Sexual and Gender-Based Crimes in 2014 and the ICC Policy on Children in 2016.
In earlier cases, the ICC faced challenges in applying an intersectional lens when assessing harm. Bashir highlights that throughout the Darfur conflict in Sudan (March 2003 until July 2008), Bashir’s military would target civilians, typically from the Zaghawa, Fur and Masalit ethnic groups. The ICC Pre-Trial Chamber inBashir stated that there were reasonable grounds to conclude women from these ethnic groups had been subject to SGBV at the hands of the Sudanese military and the Janjaweed. However, as Gregor Maučec argues, the ICC did not view these factors through an intersectional lens but rather applied a one-dimensional analysis, viewing the ethnic and gender dimensions of the offences as separate.
Lubanga, which concerned conscripting children under the age of 15 years in the Democratic Republic of Congo, dealt with the sexual abuse of young girls who were used as soldiers in the conflict. The intersection of age and gender meant that young girls were at a greater risk of SGBV within the context of the conflict. The ICC Prosecutor did not consider the factor of gender, and in turn, failed to assist the ICC in its ability to assess the aggravated nature of the discriminatory violence. Adopting an analysis with a greater emphasis on intersectionality would have assisted the prosecution in understanding how, and to what extent, the various social factors of discriminatory violence aggravate one another and whether these factors resulted in a greater risk of SGBV for girl soldiers. This would have provided greater clarity to the nature and severity of criminal responsibility and therefore the proper nature of the reparations.
Whilst cases such as Bashir and Lubanga display the adoption of a more uni-sectional analysis rather than incorporating an intersectional lens, Ntaganda represents a positive development in this regard.
On 8 July 2019, the ICC found Bosco Ntaganda guilty of 18 counts of war crimes and crimes against humanity, committed in Ituri, Democratic Republic of Congo between 2002-2003. The application of an intersectional approach is reflected in Ntaganda, whereby the Trial Chamber states that the court ‘should take into account the existence of previous gender and power imbalances, as well as the differentiated impact of harm depending on the victim’s sex or gender identity’. This suggests that the ICC is more effectively incorporating an analysis of how the overlapping identities of victims are a crucial aspect of the SGBV they experienced. This approach played a key role in Bosco Ntaganda being the first person to be convicted of sexual slavery by the ICC. It is made clear by the Trial Chamber in Ntaganda that a gender-inclusive and sensitive approach should ‘guide the design and implementation of reparations at the Court and every step of the reparation process’. This indicates the ICC’s appreciation how multiple harms caused by discriminatory violence are a relevant consideration both when making an accurate determination on the liability of perpetrators, and therefore the reparations due to victims, as well as the period after such awards have been made.
The recognition by the ICC of the utility of this approach is further reflected in the ICC in its 2022 Policy on the Crime of Gender Persecution, which displays a developed awareness of the importance of intersecting factors including, ‘political, racial, national, ethnic, cultural, religious or gender identity’. As such, the ICC continuing to develop an intersectional lens when assessing crimes of SGBV will assist in providing meaningful reparations that reflect the complex dimensions of identity that should be considered together by the ICC in making determinations on the compounding factors of harm.
In summary, the ICC’s policies are responsive to SGBV. As seen in its recent decision in Ntaganda, the ICC adopting an intersectional approach can make a substantive difference to the decision it reaches. However, further judicial development is required to affirm whether the ICC has incorporated an intersectional dimension into the fabric of its assessment of the guilt of the perpetrator and whether this translates into adequate reparations for victims.
Raiff Andrews has also published on the law of property and equity.