Back to Page Authors: Oriola Oyewole

Keywords: International Criminal Court, justice, sexual and gender based violence, victim

Abstract: This paper intends to critically analyze the challenges of the International Criminal Court in the prosecution of the crime of Sexual and Gender-Based Violence (SGBV) in the Lubanga and Katanga cases. During armed conflict, sexual violence is always used as a weapon of war by combatants. This is usually committed against women and girls because of their gender. There was evidence of SGBV in the Lubanga and Katanga cases. Unfortunately, the ICC has not been able to prosecute these crimes in the above-mentioned cases. While sexual and gender-based crimes were excluded in the charges against Lubanga, in the Katanga case, sexual and gender-based crimes were included in the charges, but there was ‘insufficient’ evidence to convict the accused. It follows that the perpetrators were not prosecuted for sexual and gender-based violence in these cases. Therefore, the victims of gender-based violence did not get justice for the crimes committed against them in these two cases. This paper uses qualitative analysis of the transcripts of Lubanga and Katanga cases to answer these questions. This qualitative analysis will be explored through thematic analysis. In addition, this paper also intends to use the theories of retributive and restorative justice as well as the effects of procedural and substantive justice on the experiences of victims of SGBV at the ICC. This paper finds that the exclusion of victims of SGBV in the Lubanga case was partly due to the Prosecutorial discretion and the technicalities that follow from Regulation 55 of the Court. In Katanga case, although, Katanga and Chui were charged with counts of sexual slavery and rape as war crimes and crimes against humanity respectively, the findings depict the prosecutor could not get a conviction for these charges. Chui was acquitted of all offenses charged against him while Katanga was acquitted of sexual offences because there was no sufficient evidence to convict Chui. It is argued effective investigations needs to be done by the Office of the Prosecutor. In addition, it is also argued that the ICC faces challenges in prosecuting crimes of SGBV based on the fact that the direct perpetrators of sexual violence are mostly subordinates or foot soldiers under a superior commander. And, since the ICC prosecute the masterminds of these crimes. It poses a challenge to make them responsible for sexual violence. Nevertheless, a reasonable approach to tackle these discrepancies is the use of the doctrine of command responsibility to hold the defendants responsible for the commission of these sexual offenses. There is, therefore, a definite need for judicial activism to guarantee justice for victims of SGBV.