Justice Delayed is Justice Denied: A Feminist Critique of the International Criminal Court’s Failure to Prosecute Sexual and Gender-Based Violence

Human Rights Research Center
6 days ago
11 min read

July 3, 2025

Delays and Disinterest: The ICC’s Handling of Sexual Violence in Conflict

The criminal justice system is notorious for recognizing physical harm, often arising from violent acts such as murder and abuse. However, the topic of rape, which for the larger part of the century has been kept under wraps due to the stigma and taboo surrounding it, further complicates matters. Unlike other criminal offences, rape is commonly misunderstood, both in the legal and social context due to a plethora of factors. For instance, rape culture normalizes sexual assault along with the evidential difficulties of proving rape. In his monumental book, Beartown, Fredrik Backman aptly summed up the traumatic aftermath that victims have to live through, by stating that, “for the perpetrator, rape lasts just a matter of minutes. For the victim, it never stops” (Backman, 2016, pp. 176). The horrifying nature of rape has led to academics describing it as “social murder,” a total attack against a person’s soul, affecting the victim’s physical, psychological, and social identity.

While many survivors are failed by their domestic legal systems, international institutions such as the International Criminal Court (ICC) were founded to fill that justice gap. Established in 2002, the ICC was granted jurisdiction over genocide, war crimes, and the crime of aggression in international conflict. The ICC follows the Rome Statute, which was adopted by 120 countries. The Rome Statute grants the jurisdiction of the court and addresses specifics in how the cases will be handled, such as admissibility and applicable laws. The statute also covers the composition and administration of the Court. This includes process specifications for investigations, trials, penalties, appeals, international cooperation, and enforcement.

However, in recent years, the ICC has faced significant criticism for its failure to address sexual violence cases promptly, with only eight such cases reaching trial in the first fifteen years of its existence as of 2017. While it is sadly expected that many domestic legal systems, constrained by the patriarchy, stigma, and a lack of resources, aren’t able to attend to a large number of cases, it is alarming that an international organization does not fulfill the very reason of its establishment. For instance, there were 63,136 rape offences recorded in September 2021; however, only 5,190 of those cases successfully passed the prosecution stage. Experts stated that victims cited harmful evidence-gathering processes as one of the reasons for their withdrawal of their reports. These evidence-gathering processes are a product of the patriarchal system because the onus is always on the victim to prove the assault. Efforts to support victims through alternative collections of evidence, such as military orders, witness accounts of systematic abuse, and non-governmental organization (NGO) reports, should be the default process to try to alleviate as much added trauma as possible.

Sexual assault has proven to be disturbingly common during times of armed conflict. The military leaders in a variety of countries have been the focus of several of the ICC’s sexual violence cases. The ICC’s failure to successfully prosecute military leaders for their crimes of sexual violence falls short of the ambitious words of Richard Goldstone, former Prosecutor of the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), who stated that “it is my hope that the history of impunity for gender crimes under international criminal law will absolutely be replaced in the future by accountability and deterrence and prevention.” This article will examine the ICC’s persistent failure to prosecute sexual and gender-based violence, exposing the gap between its promises of justice and its actual performance.

Token Charges and Missed Opportunities: Prosecutorial Gaps in the ICC

At present, the ICC’s poor prosecution record threatens its legitimacy and authority in leading the fight to protect victims. Although the number of successful convictions should not be used as a metric to determine an international court’s success, it is quite clear that the ICC has not fulfilled its objective of ending impunity for gender crimes under international law. A high conviction rate may look impressive on paper, but it tends to overshadow deeper, more pressing issues such as underreporting, procedural shortcuts that undermine due process, unfair trials, testimonies from coercion, and limited victim participation. The ICC adopts a prosecutorial approach that treats sexual and gender-based violence as secondary charges rather than central offenses deserving of focused attention and resources. This is despite the United Nations Security Council, in Resolution 1820 acknowledging the widespread use of rape as a war tactic that has negative effects on civilian safety and “the economic and social stability” of nations.

This approach minimizes the gravity of such crimes and reduces their importance within international justice. The ICC tends to provide limited victim and witness support, which discourages survivors from coming forward, contributing to the weakening of the prosecution process. One of the explanations as to why these prosecutorial gaps exist is due to then-prosecutor Luis Moreno Ocampo, who prioritised building “easier to investigate” cases over sex-based crimes to get the institution up and running. Although current prosecutor Fatou Bensouda, who took office back in 2012, has been an outspoken advocate for the prosecution of sexual and gender-based violence, the current reality is that there have been few convictions for sexual violence crimes within the ICC.

Article 25(3) of the Rome Statute may be causing some of the issues with these convictions. This particular article finds individuals criminally responsible if they order, solicit, or induce the commission of a sexual and/or gender-based violent crime. This means individual leaders can be held accountable for the actions of their armies, even if they did not commit these specific crimes. The issue with this article comes from the variety of ways in which it is further broken down. The various subsections range from committing the crime themselves (section a), to facilitating a commission to carry out these crimes (section c), to being made aware that such crimes are being committed within their ranks (section d). The specifics of this range lead to more loopholes than intended. The ICC’s strict application of this Article’s judicial interpretations has resulted in the acquittals of a majority of sexual violence cases and has not delivered on its promise of justice to victims.

A Pattern of Neglect: Lessons from Bemba, Ongwen, and Beyond

One of the more shocking cases where the ICC acquitted military leaders who had committed gross violations of international humanitarian law is the infamous case of The Prosecutor v. Jean-Pierre Bemba Gombo. Jean-Pierre Bemba, a Congolese politician and rebel leader, had been found guilty in 2016 for his failure in stopping his subordinates in raping and killing civilians in the Central African Republic between the years of 2002 to 2003. Although Bemba’s legal team argued that once the militants had crossed the border, they were no longer under his control and were acting on their own, the presiding judge ruled against him, stating that he was still responsible for the actions of his militants.

His conviction was hailed as a landmark step for the ICC because previous Congolese leaders had been accused of committing human rights violations but had not been successfully prosecuted. It is important to highlight the bravery and resilience of rape victims who testified against Bemba as a crucial part of this conviction. In the trial that led to his conviction, seven out of more than 2,000 victims gave oral testimonies on Bemba’s crimes, underscoring their fearlessness in seeking justice against fears of repercussions. Bemba tried to engage in witness tampering. He was the mastermind of an operation to bribe and manipulate 14 of the witnesses, having been accused of “planning, authorising, and approving the illicit coaching” of the witnesses to get them to give dishonest statements.

Despite this, the relief from his conviction was short-lived, as it was subsequently overturned in 2018. In citing their reasons for his acquittal, the Appeals Chamber stated that he was only acting as a remote commander and did not have direct control over his troops’ operation in a foreign country, making him unable to control their actions. The outcome of the case is undeniably a huge blow to victims’ rights, and it reflects the bleak reality that the efforts of the brave survivors who had fought in court to ensure justice were futile.

Jean-Pierre Bemba looking on in the ICC courtroom during the delivery of his verdict, which saw him previously convicted in 2016 (Source: https://www.icc-cpi.int/news/bemba-et-al-case-trial-chamber-vii-orders-interim-release-mr-bemba-following-appeals-chamber)

The Bemba case offered a rocky start to the ICC’s efforts in eradicating sexual violence crimes in war-torn regions. The case of Dominic Ongwen provided hope during challenging times, where the law turned a blind eye to the suffering of victims. Dominic Ongwen gained a reputation for his cruelty during his time as a commander for the Lord’s Resistance Army (LRA), a rebel group in Uganda. His time in the LRA began when he was a child, when LRA militants abducted him on his way to school. He was a child soldier who slowly rose up the ranks to be a commander after receiving military training from senior officers of the LRA. His troops were responsible for the 2009 Makombo massacre, where 345 civilians were murdered, with 250 more abducted.

The advantage of the Ongwen trial was that victims did not have to embark on the long journey to the Hague in the Netherlands to attend the hearing. In-person requirements present an unnecessary burden on victims, particularly victims with children, who may have difficulties procuring childcare for the duration of the trip. This was due to the successful application of Article 56 of the Rome Statute, which provides for the collection of evidence “not available subsequently for the purposes of a trial.” This allows prosecutors to collect testimonies before the trial in a “pre-trial chamber.”

Out of the many serious charges of forced pregnancy, rape, sexual slavery, and forced marriages levied against him, Ongwen was convicted of 61 out of 70 of them. This is a good step in improving the ICC’s legitimacy under the eyes of international law, especially due to the ICC’s Trial Chamber awarding 52.4 million Euros to almost 50,000 survivors of Ongwen’s crimes.

A Promising Future: Suggested Reforms to the ICC’s Current Approach

This article recommends that the ICC move beyond its mere symbolic commitment to ensuring that cases of sexual violence are successfully prosecuted. This includes gaining the trust of survivors to testify by providing staff with training in trauma-informed and culturally sensitive practices. The ICC should work in cooperation with women-led organizations that understand how to support rape victims. The example of the efforts the ICC made in the case of Ongwen, where the victims were not mandated to travel to an unfamiliar land to give their testimony at personal expense, is commendable and should be used in future cases.

The legal framework of the Rome Statute Article 25(3) needs to be adjudicated to function in the manner it was intended. Cases should not be lost on technicalities. The ICC’s legal team needs to work to close all loopholes so future leaders know they will be held accountable for their actions and the actions of those whom they lead. This will provide peace of mind to the victims, knowing that their bravery on the stand has the potential to lead to justice.

Oftentimes, victims may be hesitant in giving their testimony if they are not confident in the ability of an international judiciary to accommodate their needs. The Court is also encouraged to apply legal frameworks that prioritize the collection of evidence without subjecting the victim to further pressure, such as military orders, witness accounts of systematic abuse, and NGO reports.

Conclusion

Although the ICC has made strides in improving its recognition of sexual and gender-based crimes as a weapon of war, there is still much to be done. Ruta Sepetys’ words in Salt to the Sea state, “What had human beings become? Did war make us evil or just activate an evil already lurking within us?” (Sepetys, 2016, pp.79). The antidote to these perils lies in justice. The ICC can provide this justice by assisting victims in their collection of evidence through trauma-informed care, by working with legal scholars to lock down the specifics required for convictions under the Rome Statute Article 25 (3), and by offering accommodations that suit the needs of those who testify in these significant cases.

Glossary

Acquittal: The decision of a court that someone is not guilty
Conviction: The act or process of finding a person guilty of a crime, especially in a court of law
Gender crimes: Crimes committed against persons, whether male or female, because of their sex and/or socially constructed gender roles
Impunity: Freedom from punishment or from the unpleasant results of something that has been done
Jurisdiction: The authority of a court or official organization to make decisions and judgments
Legitimacy: The state of being fair or honest
Militants: A group of individuals who believe in something very strongly and are active in trying to bring about political or social change, often in extreme ways that other people find unacceptable
Patriarchy: A society in which the oldest male is the leader of the family, or a society controlled by men in which they use their power to their own advantage
Plethora: An ample amount or number
Presiding judge: A judge who is in charge of a formal meeting, ceremony, or trial
Prosecutor: A legal official who accuses someone of committing a crime, especially in a law court
Rome Statute: The international treaty that founded the International Criminal Court (ICC) and established its jurisdiction over genocide, crimes against humanity, war crimes and aggression.
Solicit: To ask someone for money, information, or help
The Hague: The administrative capital of the country of Netherlands and the home of the court and government, although Amsterdam is the official capital. The Hague is home to the International Criminal Court (ICC) and the International Court of Justice (ICJ)