Professor Susana SáCouto Comments on Current Challenges in International Criminal Justice: Reparations and Evidence
Professor Susana SáCouto addresses in her latest publications the topics of reparations and evidence in international criminal law proceedings. Jurisprudence also remains unclear about the standard of proof required to hold responsible commanders for the acts of their subordinates.
A report by the War Crimes Research Office (WCRO) and edited by Professor SáCouto addresses the question of reparations for sexual and gender-based violence (SGBV). In particular, the report analyzes whether the Central African Republic’s Special Criminal Court (SCC) can contribute to fair, effective and adequate reparations for victims of SGBV. Drawing on Central African law, as well as reparations examples from both international and domestic courts, the report explores the SCC’s authority to award reparations, how reparations can be financed and implemented – particularly in situations where the person convicted lacks sufficient financial resources to cover the costs of reparations – and the types of reparations that the court can award, among other issues.
In addition to reparations, Professor SáCouto has written on current theories and approaches to holding individuals responsible for collective crimes, particularly as they apply to collective crimes involving SGBV. In a June 2018 ruling, the International Criminal Court (ICC) Appeals Chamber reversed its conviction of former Commander Jean-Pierre Bemba for war crimes and crimes against humanity committed by his military subordinates in the Central African Republic in 2002/2003. In a recent article co-authored with Special Advisor for Gender to the Prosecutor of the ICC, Patricia Sellers, and published in the William & Mary Bill of Rights Journal, Professor SáCouto examines the impact of this decision on cases involving SGBV crimes. She and her co-author find that the majority’s analysis of command responsibility in Bemba, if followed, “significantly narrows the prospects for successful prosecution of sexual and gender-based crimes at the ICC.” Absent reconsideration, they argue, the Court’s recent jurisprudence on command responsibility is likely to “remain a major obstacle to the successful prosecution of cases involving SGBV crimes,” especially for high-ranking accused who did not themselves perpetrate the crimes.
In a more recent article, published in the Leiden Journal of International Law, Professor SáCouto and her co-authors examine how current theories of liability – other than command responsibility – respond to the need to hold collective perpetrators criminally responsible for sexual and gender-based crimes. They identify two divergent patterns emerging from the jurisprudence of the ad hoc criminal tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) and the ICC, each of which presents challenges for the successful prosecution of SGBV crimes. They find that at the ad hocs, successful cases “examined [SGBV crimes] in a ‘contextually comparative’ manner to evidence of other atrocity crimes,” but the mode of liability relied on in those cases has been “subject to both judicial dissent and scholarly critique.” At the ICC, new modes of liability have been developed, but they “have largely been interpreted or applied differently to acts of sexual violence than to other crimes, leading to acquittals of the accused on the sexual violence counts." Indeed, the ICC’s new interpretations have resulted in acquittals of sexual violence counts in every case presented to the Court except in the recent Prosecutor v. Bosco Ntaganda case. The authors recognize that the Trial Chamber decision in Ntaganda goes some way toward properly contextualizing sexual violence within other criminal conduct, yet they caution that the “case is still subject to appeal and it is not yet clear that the decision has ushered in a new normative approach to sexual violence crimes at the ICC.” They conclude that “[a]bsent a shift in that direction, cases of conflict-based sexual and gender sexual violence may continue to suffer significant obstacles, threatening to render such violence as invisible as it was just decades ago, in spite of provisions in the Rome Statute specifically designed to prevent this result.”
Professor SáCouto leads the War Crimes Research Office at American University Washington College of Law. The core task of the WCRO is to provide legal research and analysis to international, hybrid, and domestic criminal justice mechanisms on cutting-edge issues of international criminal and humanitarian law. Other projects directed by the WCRO include the Gender and International Criminal Law Project (with the Women and the Law Program and Academy for Human Rights and Humanitarian Law), the Afghanistan Documentation Project, the ICC Legal Analysis and Education Project, and the Universal Jurisdiction Project. Learn more at: https://www.wcl.american.edu/impact/initiatives-programs/warcrimes/.
SáCouto, S., & Ouoba, A., Case-Based Reparations at the Central African Republic's Special Criminal Court. War Crimes Research Office at American University Washington College of Law (2019).
SáCouto, S., & Sellers, P., The Bemba Appeals Chamber Judgment: Impunity for Sexual and Gender-Based Crimes?, 27 Wm. & Mary Bill of Rts. J. 599, 601 (March 2019).
SáCouto, S., Sadat, L. & Sellers, P., Collective Criminality and Sexual Violence: Fixing a Failed Approach. 33 Leiden Journal of International Law 207, 210 (March 2020).