Dear Readers,

The following commentary first ran in a Special Issue of the Legal Eye on the ICC, a regular eLetter produced by the Women’s Initiatives for Gender Justice, an international women’s human rights organization that advocates for gender justice through the International Criminal Court (ICC) and works with women most affected by the conflict situations under investigation by the ICC. This Special Issue is the first in a series of four Special Issues reporting on the first trial Judgment handed down by Trial Chamber I in the case against Thomas Lubanga Dyilo on March 14, 2012. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative. To read the full version of the first Special Issue Legal Eye eLetter, click here.

On March 14, 2012, Trial Chamber I issued a judgment in the ICC’s first case, The Prosecutor v. Thomas Lubanga Dyilo, convicting Thomas Lubanga Dyilo (Lubanga) of the war crimes of conscripting and enlisting children under the age of 15 and using them to participate actively in hostilities within the meaning of Articles 8(2)(e)(vii) and 25(3)(a) of the Statute from early September 2002 to August 13, 2003 (Judgment).^[i] Lubanga is the former President of the Union des patriotes congolais (UPC) and Commander-in-Chief of the Forces patriotiques pour la libération du Congo (FPLC).  In a 624-page judgment, including two separate or dissenting opinions, the Trial Chamber addressed Lubanga’s liability for the crimes charged, and also included a detailed discussion of the arguments of the parties, addressing issues such as the Prosecution’s use of intermediaries in its investigations, and the Defense claims of abuse of process.[ii] These issues will be discussed in more detail in forthcoming Special Issues in this series. Judge Fulford issued a separate opinion on the scope of Article 25(3)(a) of the Statute, regarding an individual who is alleged to have committed a crime ‘jointly with another’. Judge Odio Benito issued a separate and dissenting opinion concerning three particular aspects of the Judgment: (i) the legal definition of the crimes of enlistment, conscription and using children under the age of 15 to directly participate in hostilities; (ii) the manner in which the majority dealt with the dual status victims/witnesses in evaluating their status as victims participating in this case; and (iii) the evidentiary value of video evidence.[iii]  A sentencing hearing will be held for Lubanga on June 13, 2012.[iv]

Background on Sexual Violence in the Context of the Lubanga Case

As noted above, Lubanga was tried for and convicted on the limited charges of enlistment, conscription and use of child soldiers, and was not charged with rape or sexual violence.  During the trial proceedings, however, Prosecution witnesses gave extensive testimony concerning sexual violence committed against child soldiers by the UPC.  In the trial Judgment, the majority of Trial Chamber I found that it was precluded from considering this evidence, pursuant to Article 74(2),^[v] because factual allegations concerning sexual violence had not been included in the Pre-Trial Chamber’s confirmation of charges decision. While not making any finding of fact on the evidence of sexual violence, the Chamber did discuss the sexual violence testimony in some detail.  In her Separate and Dissenting Opinion, Judge Odio Benito found that sexual violence was an ‘intrinsic’ aspect of the legal concept of ‘use to participate actively in the hostilities’.^[vi] The Judgment and Judge Odio Benito’s Separate and Dissenting Opinion are discussed further, below.

The Democratic Republic of the Congo (DRC) is known to have one of the highest rates of sexual violence in the world,[vii] and there is significant evidence, gathered by local and international organizations including the Women’s Initiatives for Gender Justice, of rape and other forms of sexual violence taking place in the Ituri region in eastern DRC.[viii] In a number of statements prior to and at the time of the opening of an investigation in the DRC Situation, the Prosecutor made multiple references to the commission of gender-based violence by militia groups under the alleged command of Lubanga.[ix]  From the early stages of the investigation, the Women’s Initiatives for Gender Justice has advocated for the Office of the Prosecutor to both investigate and include charges for gender-based crimes in the DRC Situation and in the case against Lubanga.

Nonetheless, the Prosecutor’s Arrest Warrant for Lubanga did not include charges for gender-based crimes.^[x]  On August 16, 2006, the Women’s Initiatives submitted a letter and confidential report to the Office of the Prosecutor, outlining concerns that gender-based crimes had not been adequately investigated in the Lubanga case, and encouraging the Prosecutor to investigate further. The confidential report presented the Prosecutor with documentation of 55 interviews of individual victims/survivors of rape and sexual violence; of these 31 interviewees were victims/survivors of rape and sexual slavery committed by the UPC.^[xi] The letter further underscored that the selective charges brought by the Prosecutor would have a significant impact on the scope of victims that could be authorised to participate in the proceedings. On September 7, 2006, the Women’s Initiatives became the first NGO to file before the Court, in respect of the absence of charges for gender-based crimes in the Lubanga case.[xii] However, no further charges were brought, and the Lubanga case proceeded through the confirmation proceedings, and to trial, on limited charges.[xiii]

Despite the absence of charges of gender-based crimes in the case against Lubanga, extensive evidence on sexual violence was heard throughout the trial proceedings. In its opening statement in January 2009, the Prosecution described the use of rape during recruitment, and that child soldiers were encouraged to rape women as part of their training, and were sent by their commanders to look for women and to bring them to the camp.[xiv] Girl soldiers, some as young as 12 years, ‘were the daily victims of rape by their commanders’ and they were used as ‘cooks and fighters, cleaners and spies, scouts and sexual slaves’.  The Prosecutor acknowledged the multiple roles of girl soldiers, and also underlined that sexual violence was part of their daily lives: ‘One minute they will carry a gun, the next minute they will serve meals to the commanders, the next minute the commanders will rape them. They were killed if they refused to be raped.’[xv] A Legal Representative for participating victims, including a former girl soldier, confirmed these facts in her opening statement, asserting that ‘rape began as soon as they were abducted and continued throughout their stay with the UPC.  In fact, often the abuses were greatest in the initial stages of their abduction and in the training camps where they were trained to become militia soldiers.’[xvi]

The Trial Chamber also heard a significant amount of direct testimony on sexual violence from Prosecution witnesses.[xvii]  While not all of this testimony was relied on by the Chamber in convicting Lubanga, the crimes described were exemplary of the experiences of girl soldiers within the UPC. Among the Prosecution witnesses relied upon by the Chamber, Witness 38 described the roles performed by girls in the camps, which included providing sexual services.[xviii] Witness 299 testified that ‘the PMFs [girl soldiers’] job was to take the commander’s bags, and their other job was to be their wives’.[xix] Witness 7 confirmed that ‘commanders took girls who were recruits and said “[t]oday you will come and sleep with me”’, and that the girls were not allowed to say no.[xx] In response to questions from Judge Odio Benito about sexual violence committed against girl soldiers during the initial training phase, Witness 16 confirmed that ‘out of here, being in the centre for the first time, the trainers and other guards in the centre took advantage of the situation and they would rape the recruits’.[xxi] Witness 89 also stated that rape and sexual violence were commonly committed against girl soldiers. He testified that ‘there were commanders who took girls as women. They would get them pregnant, and these girls then had to leave the camp and go to the village.’ He also testified that this ‘had to be accepted’ when a commander wanted a girl.[xxii]

On the basis of the testimony presented by Prosecution witnesses, the Legal Representatives of Victims, acting on behalf of participating victims in the case, made an additional attempt to broaden the charges faced by Lubanga, and to specifically include gender-based crimes. In May 2009, the Legal Representatives filed a joint submission requesting the Trial Chamber to consider modifying the legal characterisation of the facts pursuant to Regulation 55 of the Regulations of the Court,^[xxiii] to add the crimes of sexual slavery and inhuman and cruel treatment to the existing characterisation.^[xxiv]   In their filing, they argued that the evidence and witness testimony in the case could support additional charges of sexual slavery and inhuman and cruel treatment of recruits, including girl recruits who were pregnant as a result of rape. While a majority opinion^[xxv] found that Regulation 55 permitted the Trial Chamber to modify the legal characterisation of facts to include facts and circumstances not originally contained in the charges, the Appeals Chamber reversed this decision on procedural grounds.  The Appeals Chamber held that ‘Regulation 55(2) and (3) of the Regulations of the Court may not be used to exceed the facts and circumstances described in the charges or any amendment thereto’.^[xxvi]

Reference to Sexual Violence in the Judgment

With no amendments to the charges, and the unsuccessful attempt by the Legal Representatives to use Regulation 55, gender-based crimes received limited mention in the final Judgment. The Trial Chamber held that, given the Prosecution’s omission of factual allegations regarding sexual violence in its document containing the charges and therefore its exclusion from the confirmation decision, the Trial Chamber was precluded from taking allegations of sexual violence into consideration in the Judgment.  The Chamber was careful to limit the basis for its consideration of this evidence, stating that, ‘given the prosecution’s failure to include allegations of sexual violence in the charges […] this evidence is irrelevant for the purposes of the Article 74 Decision save as providing context’.^[xxvii] As a result, the Trial Chamber noted that it had ‘not made any findings of fact on the issue, particularly as to whether responsibility is to be attributed to the accused’.[xxviii] In doing so, it recognised the accused’s right to be fully informed of the charges against him under Article 67(1)(a) of the Statute. Despite not taking the evidence of sexual violence into consideration to determine the responsibility of the accused, as described in more detail below, the Chamber stated that it would consider ‘in due course’ whether evidence of sexual violence ‘ought to be taken into account for the purposes of sentencing and reparations’.[xxix]

The Trial Chamber’s Formulation of the Crimes

Thomas Lubanga was convicted of the three separate war crimes of conscripting and enlisting children under the age of 15 and using them to participate actively in hostilities.[xxx] Since 2008, based on our documentation and analysis, the Women’s Initiatives for Gender Justice has advocated that sexual violence is an integral component of each of the three crimes for which Lubanga was charged and convicted. Sexual violence is often used against child soldiers, especially girl soldiers, to demonstrate control and ownership and to sever any attachment with their lives prior to abduction.[xxxi] This was also recognised in the expert testimony of Radhika Coomaraswamy, UN Special Representative for the Secretary General (UNSRSG) for Children in Armed Conflict.  She highlighted that girls recruited into armed groups play multiple roles, including combat, scouting and portering, in addition to sexual slavery and forced marriage. UNSRSG Coomaraswamy urged the Chamber to consider ‘the central abuse perpetrated against girls during their association with armed groups after they have been recruited or enlisted, regardless of whether or not they mostly engaged in direct combat functions during conflict’.[xxxii] She added that ‘though some are mainly combatants, others may be mainly sex slaves […] they have all been recruited and enlisted into this group […]’.[xxxiii]

Speaking for the Prosecution in the closing arguments, Deputy Prosecutor Fatou Bensouda told the Chamber that girl soldiers, in addition to the tasks that they performed identically to boy soldiers, were subjected to specific abuse, such as rape by fellow soldiers. She maintained that the enlistment and conscription of children under the age of 15 encompassed ‘all the acts suffered by the child during the training and during the time they were forced to be a soldier. This interpretation is particularly relevant to capture the gender abuse, a crucial part of the recruitment of girls.’[xxxiv] Bensouda urged the Chamber to make clear that the girls forced into marriage with commanders were not the wives of commanders but victims of recruitment, and should be particularly protected by demobilization programs and by the ICC.[xxxv]

However, the Trial Chamber’s formulation in the Judgement of the crimes of conscription, enlistment and use of child soldiers did not explicitly address sexual violence. At the outset of its analysis of the legal findings, the Trial Chamber briefly considered relevant jurisprudence, including that of the Special Court for Sierra Leone, to find that the crimes of conscription and enlistment constituted a violation of the Rome Statute’s protection of vulnerable children, and to determine that children under the age of 15 were unable to consent to any manner of recruitment.[xxxvi] The Chamber’s analysis of the legal findings for the most part focussed on the correct interpretation to be given to the crime of using children under the age of 15 years to participate actively in hostilities.^[xxxvii] Taking into account the relevant provisions of the Statute and the Elements of Crimes, as well as previous international criminal jurisprudence on the issue, the Chamber came to the following formulation of ‘active participation’:

Those who participate actively in hostilities include a wide range of individuals, from those on the front line (who participate directly) through to the boys or girls who are involved in a myriad of roles that support the combatants. All of these activities, which cover either direct or indirect participation, have an underlying common feature: the child concerned is, at the very least, a potential target. The decisive factor, therefore, in deciding if an “indirect” role is to be treated as active participation in hostilities is whether the support provided by the child to the combatants exposed him or her to real danger as a potential target. In the judgement of the Chamber these combined factors – the child’s support and this level of consequential risk – mean that although absent from the immediate scene of the hostilities, the individual was nonetheless actively involved in them. Given the different types of roles that may be performed by children used by armed groups, the Chamber’s determination of whether a particular activity constitutes “active participation” can only be made on a case-by-case basis.^[xxxviii]

The Chamber did not make any definitive legal finding on whether sexual violence could or should be properly included within the scope of the separate crimes. In fact, it specifically left the question open.^[xxxix] The Chamber did cite to both the written submissions and the in-court testimony of expert witness for the Chamber, UNSRSG Coomaraswamy, and noted that ‘Ms Coomaraswamy suggested that the use for sexual exploitation of boys and girls by armed forces or groups constitutes an “essential support function”’.^[xl] The Chamber also stated that ‘Ms Coomaraswamy gave relevant background evidence that children in this context frequently undertake a wide range of tasks that do not necessarily come within the traditional definition of warfare’, which exposed them to risks, including ‘rape, sexual enslavement and other forms of sexual violence’.[xli]

Judge Odio Benito’s Separate and Dissenting Opinion

In a Separate and Dissenting opinion, Judge Odio Benito dissented from the majority’s findings on several issues, including on sexual violence as it related to the concept of enlistment, conscription and use of child soldiers. Judge Odio Benito argued that the prohibition against the recruitment of children under 15 should be applied to any type of armed group, regardless of the nature of the armed conflict—national or international. She also argued that the majority’s failure to ensure that sexual violence was included within the concept of ‘use to participate actively in the hostilities’ rendered this aspect of the crime invisible.

Judge Odio Benito characterised sexual violence as inherent in the use of child soldiers. In her view,  ‘sexual violence committed against children in armed groups causes irreparable harm and is a direct and inherent consequence to their involvement with the armed group’.[xlii] She added that ‘sexual violence is an intrinsic element of the criminal conduct of “use to participate actively in the hostilities”’.^[xliii] She further underscored the different and disparate impact that sexual violence had upon female child soldiers.  Judge Odio Benito explained: ‘[s]exual violence and enslavement are the main crimes committed against girls and their illegal recruitment is often intended for that purpose’.^[xliv] She also emphasised the different experiences and consequences for girl and boy child soldiers, noting ‘a gender-specific potential consequence of unwanted pregnancies for girls that often lead to maternal or infant’s deaths, disease, HIV, psychological traumatisation and social isolation’.[xlv] Judge Odio Benito further argued for a broader definition of the concept of ‘risk’, with clearly gendered implications. She asserted that risk could emanate from both the opposing party to the conflict as well as the armed forces into which the child had been recruited.^[xlvi]  In this regard, she emphasised that:

Children are protected from child recruitment not only because they can be at risk for being a potential target to the “enemy” but also because they will be at risk from their “own” armed group who has recruited them and will subject these children to brutal trainings, torture and ill-treatment, sexual violence and other activities and living conditions that are incompatible and in violation to these children’s fundamental rights. The risk for children who are enlisted, conscripted or used by an armed group inevitably also comes from within the same armed group.^[xlvii]

Thus, Judge Odio Benito found the majority’s approach to be discriminatory, as it failed to take into account the full range of human rights violations pursuant to Article 21(3).[xlviii] She argued:

[i]t is discriminatory to exclude sexual violence which shows a clear gender differential impact from being a bodyguard or a porter which is mainly a task given to young boys. The use of young girls’ and boys’ bodies by combatants within or outside the group is a war crime and as such encoded in the charges against the accused.^[xlix]

Judge Odio Benito asserted that the majority ‘confuse[d] the factual allegations of the case with the legal concept of the crime’.^[l] In her view, the Chamber itself had ‘a responsibility to define the crimes based on the applicable law, and not limited to the charges brought by the prosecution against the accused’.^[li] She stated:

I deem that the Majority of the Chamber addresses only one purpose of the ICC trial proceedings: to decide on the guilt or innocence of an accused person. However, ICC trial proceedings should also attend to the harm suffered by the victims as a result of the crimes within the jurisdiction of the Court. It becomes irrelevant, therefore, if the prosecution submitted the charges as separate crimes or rightfully including them as embedded in the crimes of which Mr Lubanga is accused. The harm suffered by victims is not only reserved for reparations proceedings, but should be a fundamental aspect of the Chamber’s evaluation of the crimes committed.^[lii]

While Judge Odio Benito’s statement envisions a role for the judges in interpreting the crimes regardless of the charges submitted by the Prosecutor, the long and complicated procedural history of the Lubanga case demonstrates the difficulties and obstacles of attempting to account for gender-based crimes at a later stage in the proceedings, such as through the use of Regulation 55 or judicial interpretation. Indeed, the emphasis in the Judgment on the importance of such crimes being included in the decision on the confirmation of charges, in order to be taken into account in the trial Judgement, underscores that gender-based violence must be addressed at the earliest stages of the proceedings, the investigation and charging phases, by the Prosecution.

Implications for Reparations

The Chamber explicitly deferred making any decision on whether evidence of sexual violence ‘ought to be taken into account for the purposes of sentencing and reparations’.^[liii]  At an earlier stage of the proceedings, the Prosecution had argued that sexual violence should be taken into account in sentencing.[liv] However, it remains unclear whether sexual violence can be considered as an aggravating factor for the purposes of sentencing under the statutory framework.[lv] In respect of reparations, a filing by the Registry[lvi] in response to a request from the Chamber specifically included sexual violence as a type of harm caused as a result of child conscription.[lvii] In an introductory section regarding the nature of the charges, the Registry noted that as a result of conscription, child soldiers ‘may also have endured sexual violence. In some cases girls may have had a child as a result of being raped, experiencing stigmatization as a result.’[lviii] The Trust Fund for Victims also recognised the prevalence of gender-based crimes against child soldiers in its First Report on Reparations, in which it noted that sexual violence was perpetrated widely against girl and boy soldiers during their conscription, enlistment and/or participation.[lix] The Trust Fund further noted that in interviews carried out by the Trust Fund in 2010 with former child soldier beneficiaries of its assistance projects, over 48 percent of former child soldiers (of whom 66.7 percent were girls and 32.2 percent boys) indicated they had been subject to sexual violence and 35 percent of former boy child soldiers indicated they had been forced to commit sexual violence.[lx]

In a March 14, 2012 scheduling order concerning the timetable for sentencing and reparations, the Trial Chamber invited other individuals or interested parties to apply for leave to participate in this phase of the proceedings. As discussed in more detail below, on April 20, 2012 the Women’s Initiatives was granted leave to participate in the reparations proceedings.

Read the Trial Chamber’s Judgment of March 14.

Read Judge Odio Benito’s Separate and Dissenting Opinion.

Read the reactions from our partners in the DRC on the conviction of Lubanga, in Women’s Voices eLetter, April 2012.

Read the Legal Filings of the Women’s Initiatives in the Lubanga case.