It is time to accuse Putin of rape – human rights lawyer

Credit: Sergey Bobylev/TASS 

Opinion

Article by: Olena Temchenko, lawyer at the Expert Center for Human Rights
Rape is ubiquitous in war. It is also a crime against humanity and a war crime, and military commanders must prosecute soldiers committing rape. However, Russian soldiers committing rape in Ukraine receive tacit support of their commanders, which makes the Russian leadership and Putin himself, eligible for prosecution, just like the Democratic Republic of Congo’s Bosco Ntaganda, sentenced to 30 years in prison for abetting rape, says Olena Temchenko, with the Ukrainian-based Expert Center for Human Rights.

Sexual violence has almost always gone hand-in-hand with war. However, mankind has tried to establish certain rules and corresponding prohibitions for conducting war. In the Geneva Conventions of 1949 and their Additional Protocols, the prohibition of rape is established directly, as well as indirectly, through the prohibition of torture and ill-treatment during both international and internal armed conflicts.

Despite the unanimous position of the world community, along with verdicts in high-profile cases at the International Criminal Court and the development of criminal liability for such crimes in national courts, rape continues to be part of the conflicts of the 21st century.

What happened in the Democratic Republic of the Congo

The Union of Congolese Patriots (UPC) and the Patriotic Forces for the Liberation of Congo, (FPLC) participated in a non-international armed conflict with the opposing side in Ituri, a province in the Democratic Republic of the Congo, in 2002-2003. One of the leaders of these armed formations was Bosco Ntagandu. UPC and FPLC soldiers raped women, children, and men.

  • In February 2003, after a successful attack led by UPC/FPLC units on the village of Kobu and other nearby villages, soldiers took prisoners, and raped women and some men.
  • The murder of a woman who was trying to defend herself from who soldiers who raped her was established.
  • Children were raped: a girl named Nadezh, who was about nine years old, and who was taken to study at the Lingo camp, was raped and died from her injuries. Another girl, who was less than 15 years old, was forcibly detained in the Appartements camp in Mongbwal, and repeatedly raped by many soldiers.

The International Criminal Court, in the case, Prosecutor vs. Bosco Ntaganda,  (ICC-01/04-02/06) concluded that the actions of the UPC/FPLC against the civilian population were the foreseeable result of a premeditated strategy targeting the civilian population; the crimes were committed in accordance with the policy of the UPC/FPLC in which Bosco Ntaganda performed an essential military function.

Despite the claims of certain commanders being made in front of the soldiers that “any soldier who … rapes women or girls will be shot dead,” military operations included rapes. No member of the UPC/FPLC formation was punished for this.

Although in these, and other cases of rape of the civilian population, Bosco Ntaganda was not proven to be directly involved, on 8 July 2019, the International Criminal Court found him guilty, beyond a reasonable doubt, of 18 counts of war crimes and crimes against humanity.

In particular, according to Article 25 (3)(a) of the Rome Statute, Bosco Ntaganda was found guilty as an indirect perpetrator of rape as a crime against humanity (Article 7 (1)(g) Rome Statute) and as a war crime (Article 8 (2)(e)(vi) Rome Statute). He was sentenced to 30 years in prison.

Bosco Ntaganda during the delivery of the sentence in Courtroom 1 of the International Criminal Court on 7 November 2019. Credit: ICC-CPI ~

Bosco Ntaganda during the delivery of the sentence in Courtroom 1 of the International Criminal Court on 7 November 2019. Credit: ICC-CPI

Mass rapes of the civilian population committed by Russian military personnel became a terrible reality in the past year of the full-scale invasion of Ukraine by the Russian Federation.

After Russian-occupied territories were liberated in Ukraine, facts of rape of civilians by the Russian military were revealed.

  • In the Kyiv Oblast, in March 2022, two Russian military personnel entered a couple’s home, raped a 22-year-old woman several times, committed acts of sexual violence against her husband, and forced the couple to have sexual intercourse in their presence. One of the soldiers then forced the couple’s four-year-old daughter to have oral sex with him, which is considered rape.
  • In another village, Russian soldiers kidnapped two women and shot a man dead who was trying to protect his wife. Russian military took both women to a room where they were raped and sexually assaulted.
  • On 13 March 2022, Russian soldiers entered a private house in the village called Mala Rohan, Kharkiv region. One of them, threatening with a weapon, took the woman to the next room, raped her, forcing her to have oral sex, while threatening to kill her child. The soldier repeatedly raped the woman, cut her neck and cheek with a knife, beat her in the face, and cut off strands of her hair. When he left, the woman and her family walked to Kharkiv, where she received medical assistance.
  • A case was recorded when eight Russian soldiers raped a man who was stopped at a checkpoint.
  • Witnesses reported cases where commanders organized rape or gave instructions that implied they condoned it. Thus, during the temporary occupation of Kyiv Oblast, three military men entered a private house. One of them was a commander who ordered the woman to follow them, explaining: “Our guys have had a couple of drinks, and now they want to relax.” The woman was raped.

The above, and other documented crimes of Russian military personnel, bear the marks of rape as a war crime and a crime against humanity, in accordance with the elements considered crimes by the International Criminal Court, which contain the interpretation of Articles 7 and 8 of the Rome Statute.

At the same time, Russian commanders did not apply disciplinary measures to prevent crimes or take measures to bring the perpetrators to justice. Wayne Jordash, a British lawyer who advises Ukrainian prosecutors, noted that he saw signs of tacit consent of the commanders in 30 cases he reviewed.

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Law enforcement agencies of Ukraine investigate all detected crimes.

As of 4 March 2023, the Prosecutor’s Office of Ukraine recorded 171 cases of sexual violence related to the military conflict. Most of them are in Kherson and Kyiv oblasts. Among the victims are 39 men and 13 minors, including a boy, while the rest are women.

But considering the nature of such crimes, there may be many more of them. According to human rights defenders, 90 percent of such crimes are not reported.

As world practice shows, victims of such crimes may refuse to report and assist with investigating the crimes because of social stigma.

Thus, expert Maeve Lewis, testifying during the International Criminal Court hearing of Ntaganda, claimed that women did not report their rapes because they were ashamed. Victims would hide the act of rape to avoid social consequences.

This could be significantly changed by the prosecution, both of the alleged rapists and their commanders, based on Article 28 of the Rome Statute.

In our opinion, there are grounds for bringing to justice Russia’s top leadership, based on the case of Bosco Ntaganda.

However, the Russian military and political leadership deny the commitment of sexual crimes, including rape, by its military personnel. Such crimes are not investigated or prosecuted by the Russian side. Moreover, those units where servicemen repeatedly applied sexual violence, including against children, have received awards.

The Russian 64th Motorized Rifle Brigade, which was stationed in Bucha, and is known for numerous cases of sexual violence, was awarded the honorary rank of Guardsman for “mass heroism, bravery, resilience, and courage,” according to Putin’s decree dated 18 April 2022.

To prosecute government officials of the Russian Federation, military commanders, and direct perpetrators for rape as a war crime and as a crime against humanity, it is essential to carefully document the facts of rape for their subsequent delivery to the International Criminal Court.

This publication is made possible by by support from the United States Agency for International Development (USAID) within the Human Rights in Action Program implemented by Ukrainian Helsinki Human Rights Union. USAID may or may not share the ideas expressed.

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