Challenges in Attributing Individual Criminal Responsibility for the Crime of Rape in International Criminal Law: From Akayesu to Bemba

Abstract

Rape in international criminal law has undergone a lengthy evolution from its marginal position in indictments to its explicit recognition in the Rome Statute and is now, depending on the relevant contextual elements, recognized as a crime against humanity, a war crime, and, under specific circumstances, conduct constituting genocide. Nevertheless, the consolidation of the definition of the underlying crime has not resolved the more difficult issue of attributing criminal responsibility to individuals who are not the physical perpetrators. The principal research question is how far the behavioral, organizational, and hierarchical distance between the accused and the underlying crime may extend without undermining the principle of personal criminal responsibility and the requirement to establish individual culpability. This study employs a descriptive-analytical method and draws on the Rome Statute, the Elements of Crimes, the Rules of Procedure and Evidence, the Office of the Prosecutor’s 2023 Policy, and the judgments in Akayesu, Furundžija, Čelebići, Kunarac, Katanga, Ntaganda, Ongwen, and Bemba. The findings demonstrate that neither the widespread character of a pattern of sexual violence, nor the accused’s official position, nor the accused’s considerable influence is, in itself, sufficient to establish attribution. Rather, three distinct links must be independently established: a conduct-based link, a mental-element link corresponding to the applicable mode of liability, and, in cases of command responsibility, a control-and-duty link. By critically examining both expansive and restrictive approaches, the article proposes a “three-link model” and demonstrates that the specific characteristics of rape, including coercive environments and barriers to reporting, must be taken into account in the assessment of evidence, but cannot substitute for the legal elements required for attribution. It concludes that effective accountability and the principle of personal culpability are not inherently in conflict; rather, they can be reconciled through the precise selection of the applicable mode of liability and a differentiated analysis of its constituent elements.