Will we ever see any news in the media on “Putin is being accused of rape”?

The verdict of the International Criminal Court in the case “Prosecutor v. Bosco Ntaganda” and the possibility of bringing the government officials of the Russian Federation to justice for crimes of rape committed by Russian members of armed forces is analyzed by Olena Temchenko, an expert of the Expert Center for Human Rights.

Wars have almost always gone hand in hand sexual violence. Mankind tried to establish certain rules and the corresponding prohibitions for leading 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, the issuance of a number of verdicts in high-profile cases of the International Criminal Court, the development of practical implementation in national courts regarding criminal liability for such crimes, rape continues to be committed even during the conflicts in the twenty-first century.

So did happen in the Democratic Republic of the Congo (DRC)

The Union of Congolese Patriots and Patriotic Forces (UPC/FPLC) participated in a non-international armed conflict with the opposing side in Ituri, DRC Province in 2002-2003. One of the leaders of these armed formations was Bosco Ntagandu. UPC/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 surrounding villages, soldiers took prisoners, women and some men were raped.
• The fact of the murder of a woman who was trying to defend herself from the soldiers who raped her was established.
• Children were raped: a girl named Nadezh, who was about nine years old at that time, and who was taken to study at the Lingo camp, was raped and died from the injuries; a girl named Maeve, who was less than 15 years old and was forcibly detained in the Appartements camp in Mongbwal, was repeatedly raped by many different soldiers.

ICC in the case THE PROSECUTOR v. 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 a very important military function.

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

And although in these and other cases of rape of the civilian population Bosco Ntagand was not proven to be directly involved, on July 8, 2019, Trial Chamber VI of the ICC found him guilty beyond a reasonable doubt on 18 counts of war crimes and crimes against humanity, in particular according to the Article 25(3)(a) of the Rome Statute Bosco Ntagand 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.

Mass rapes of the civilian population committed by Russian military personnel became a terrible reality during the year of full-scale invasion of the Russian Federation in Ukraine. After the liberation of the temporarily occupied territories, facts of rape of civilians performed by the Russian military were revealed.

In the Kyiv region, in March 2022, two Russian military 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 he couple’s four-year-old daughter to oral sex with him, which is considered a rape.

• In another village, Russian soldiers forcibly 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 March 13, 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 was able to receive medical assistance.

There was a case recorded when eight Russian soldiers raped a man who was stopped at a checkpoint.

Witnesses reported cases where commanders themselves organized rape or gave instructions that implied they condoned it. Thus, during the temporary occupation of Kyiv region, 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.

In our opinion, there are grounds for bringing to justice the top leadership of the aggressor country on the basis of analogy with the case of Bosco Ntaganda. After all, the Russian military and political leadership denies the commitment of sexual crimes, including rape by its military personnel. Such crimes are not investigated or prosecuted by the Russian side. Moreover, units whose servicemen repeatedly applied sexual violence, including against children, receive awards.

The listed 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 of crimes of the ICC, 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 and did not 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.

Law enforcement agencies of Ukraine investigate all detected crimes. As of March 4, 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 regions. Among the victims there are 39 men and 13 minors, including a boy, the rest are women.

But taking into account the latency of such crimes, there may be many more of them. According to human rights defenders, 90% of such crimes are not reported.

As world practice shows, victims of such crimes may refuse to report and further investigate the crime due to social stigma. Thus, expert Maeve Lewis, testifying during the ICC hearing of the above-mentioned case, claimed that women did not report their rape … because they were ashamed, victims would hide the act of rape to avoid social consequences.

Such a situation could be significantly changed by the prosecution of the guilty and not only the direct rapists, but also their commanders on the basis of Article 28 of the Rome Statute.

In our opinion, there are grounds for bringing to justice the top leadership of the aggressor country on the basis of analogy with the case of Bosco Ntaganda. After all, the Russian military and political leadership denies the commitment of sexual crimes, including rape by its military personnel. Such crimes are not investigated or prosecuted by the Russian side. Moreover, units whose servicemen repeatedly applied sexual violence, including against children, receive awards. Thus, the 64th motorized rifle brigade, which was stationed in Bucha, and is known for numerous cases of sexual violence, even against children, was awarded the honorary rank of Guardsman for “mass heroism, bravery, resilience and courage” according to Putin’s decree dated 04/18/2022.

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

Author: Olena Temchenko

For reference

This publication is made possible by the generous support of the American people through the United States Agency for International Development (USAID) in the framework of the Human Rights in Action Program implemented by Ukrainian Helsinki Human Rights Union (helsinki.org.ua).

Opinions, conclusions and recommendations presented in this publication do not necessarily reflect the views of USAID, the United States Government or UHHRU. The contents are the responsibility of the authors and ECHR.

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