Defining Rape in War: Challenges and Dilemmas

Abstract

This paper is an analysis of the International Criminal Court (‘ICC’) decision in the case of The Prosecutor v Jean-Pierre Bemba, handed down in 2016. This case was the first at the ICC to deliver a conviction for the crime of rape during armed conflict and marks the most recent attempt to accurately and comprehensively define the crime of wartime rape. In assessing the ICC’s definition, we have drawn significantly from the case law in relation to wartime rape that emerged from the International Tribunal for Rwanda and the International Tribunal for the Former Yugoslavia. These international tribunals provided a space for significant development in this area of law and were the catalyst for rich feminist academic discourse. We argue that the ICC has inadequately addressed gender stereotypes that have dominated the process of criminalising wartime rape since it was first introduced into international law. We base this argument on the ICC’s decision to adopt a definition of wartime rape that is over-reliant on a consideration of the surrounding circumstances of the act and does not link these circumstances to a consideration of the victim’s lack of consent. We identify three ways in which the Bemba definition has failed to challenge the generalising and over-simplification of gender roles in armed conflict. The first is that it has diminished female sexual agency by representing armed conflict as a zone in which consensual sexual penetration is a legal impossibility. Second, this has contributed to the perpetuation of the ideal victim archetype that plagues narratives of wartime rape and sexual violence. The representation of victims as powerless, female civilians or refugees creates a dangerous binary construct of the victim and perpetrator roles that only serves to flatten the complex and nuanced ways in which sexual agency is exercised during times of war. Finally, the perpetuation of the ideal victim/perpetrator archetype also threatens the ICC’s ability to appropriately protect the right of the accused to a fair trial and a presumption of innocence.