The International Criminal Court yesterday formally ordered that Jean Pierre Bemba, a former Congolese vice president and militia leader, stand trial on charges that he commanded his militia in a campaign of rape, murder and pillage in the Central African Republic. Bemba was arrested last year in Belgium where he was living in exile.

The case against Bemba is unprecedented in international war crimes tribunals for the fact that it will center on the crime of rape. The number of alleged rapes by Bemba's troops far outnumber cases of murder that his troops are alleged to have committed in the Central African Republic in 2002-2003. Rape was Bemba's primary weapon of war. Accordingly, much of the jurisprudence decided upon by this case will have long-lasting effects on how future war crimes prosecutors and judges approach cases of rape-as-a-war crime.

At issue yesterday was whether or not the prosecutor could charge Bemba for both rape AND torture for the same act of rape. That is, when a soldier under Bemba's command raped a victim, the prosecution argued that this soldier is also committing the crime of torture.

In yesterday's pre-trial ruling, ICC judges said, basically, "not so fast."

Bec Hamilton summarizes the key point.

Although during the confirmation hearing the Prosecution said that Bemba’s...troops “used torture through acts of sexual violence for the purpose of punishing and intimidating the civilian population for allegedly sympathizing with Bozizé’s rebels, as well as for the purpose of discriminating against their victims”, the Chamber found that the specific purpose was not clearly articulated in the Amended Document Containing the Charges, and therefore the Defence did not have sufficient notice to respond to the charge. (para 299/300) It was this lack of notice, rather than an ‘in-principle’ view that both rape and torture as a war crime could not be charged for the same act of rape, that lead the Chamber to dismiss the charge of torture as a war crime.

So, it seems we will have to wait a bit longer for a resolution to the legal question: "is rape also torture."

If you want to learn more about the terrible crimes that occurred in CAR during 2002-2003, this Amnesty report is a good place to start.