WMC Women Under Siege

Seeking justice for girl child soldiers in the Lubanga case

“I sometimes heard the cries of the girls with my own ears…there were girls who made food that I saw, but also sometimes at night there were commanders…and you could see the girls prepare the food, and at night you could listen to the girls even saying, ‘I don’t want to.’”

These are the words of a witness in the trial of Congolese militia leader Thomas Lubanga. She is describing a scene at a camp for the Union of Congolese Patriots (UPC) in Bunia, northeastern Democratic Republic of Congo. On March 14, Lubanga was convicted by the International Criminal Court, the permanent international court located in The Hague, for conscription of minors into the UPC and using them to participate actively in hostilities in the context of an armed conflict.

Yet despite this eyewitness testimony, there was no conviction on the basis of gendered-crimes and sexualized violence in the Lubanga case. Young girl soldiers who were victims of sexualized violence at the hands of UPC commanders have not been granted full justice under the law—that would have demanded that Lubanga was convicted for the sexualized violence committed against these girls as well as for their conscription into the armed forces.

Too often missing from portraits of child soldiers in DRC is the other side of the story—the young girls who are also conscripted into armed forces along with the boys, seen here. (Julien Harneis)

The omission started with the prosecutor’s failure to include any gender-based crimes within the 2006 arrest warrant. Local NGOs responded with sharp criticism. The Women’s Initiative for Gender Justice, a human rights organization working for gender justice though the ICC, became the first of a number of groups to file submissions before the court in respect to the absence of gender-based crimes. Despite all the protest, the pre-trial chamber failed to add any further charges that were not included within the prosecutor’s arrest warrant—even though they had the power to do so. The court therefore determined that there was no ground to find for gender-based crimes because none were charged on the indictment. Neither the prosecutor nor the court has clarified why they chose not to include charges of sexualized violence.

As the first judgment ever handed down by the ICC, the case is, regardless, a landmark for international justice. It has been hailed by the international legal community for raising awareness about the crime of conscription of minors, a brutal kind of draft increasingly utilized by commanders and soldiers in conflict areas around the globe. Human Rights Watch has reported on the use of child soldiers under the age of 18 in 14 different conflict areas, from Colombia to Afghanistan.  

The media has also helped increase the visibility of the conscription of child soldiers in recent years by presenting startling images of young boys with machine guns patrolling conflict areas. Too often missing from these portraits, however, is the other side of the story—the young girls who are also conscripted into armed forces along with the boys. In a 2004 study of child soldiers in the DRC, Save the Children reported that 30 to 40 percent of the child soldiers recruited or abducted into armed forces were girls. Witnesses in the Lubanga trial described how girls, some younger than 15, were trained in harsh conditions alongside boys. They described the singular forms of violence perpetrated against girl soldiers who were forced to act as domestic servants and sexual slaves to UPC commanders.

Paying deference to its own omission, the court has possibly opened the door for recognition of evidence of gender-based crimes as a determining factor in sentencing Lubanga. Stating that it would “in due course” determine whether matters of sexualized violence would be taken into consideration for the purposes of sentencing and reparations, the court will have a chance to turn things around when sentencing begins on June 13.

The inclusion of gender-based evidence in sentencing Lubanga is crucial for many reasons.

First, the admission of such evidence raises the awareness of the prevalence of sexualized violence in conflict zones. Sexualized violence committed in conflict has notoriously been overlooked throughout history, particularly in the realm of international justice. The judicial legacy of the war crimes trials at Nuremberg was virtually silent on gender-based crimes. It took more than 50 years of digging up historical accounts to lift the veil of silence to reveal the sexualized violence committed against Jewish women during the Holocaust. Similarly, at the International Criminal Tribunal for Rwanda, the first indictment before the court in the case against Jean-Paul Akayesu—a Rwandan mayor who did nothing to prevent the rape and murder of his citizens and even orchestrated particular killings—did not include any charges of sexualized violence despite the fact that evidence and witness testimony revealed systematic rape of women during the genocide. Judge Navanetham Pillay, the only female on the three-judge panel, pointed out the omission and urged the chamber to add charges of sexualized violence to the indictment. Because of her efforts, the case went down in international legal history as the first one to prosecute and convict for rape as an act of genocide.  

Second, the admission of gender-based evidence protects against future invisibility of girl child soldiers under the law. These “soldiers” experience a unique set of gender-based crimes that often are not encompassed within the ordinary definition of conscription of child soldiers under the Rome Statute of the ICC. Judge Odio Benito, in her separate and dissenting opinion, recognized that by not including sexualized violence and gender-based crimes within the legal concept of conscripting minors for “use to participate actively in the hostilities,” the court had discriminated against girl child soldiers.

“Invisibility of sexual violence in the legal concept leads to discrimination against the victims of enlistment, conscription, and use who systematically suffer from this crime as an intrinsic part of the armed group,” Benito said.

Finally, admission of gender-based evidence ensures a proper reparations scheme for victims that, according to the Rome Statute, may include restitution, compensation, and rehabilitation, among other things. Reparations for child soldiers must include a gender perspective in order to better address the disparate effects of crimes committed against boy and girl soldiers. The Women’s Initiative for Gender Justice pointed out in their observations on reparations that even in the case of similar crimes committed against boy and girl child soldiers, the resulting trauma may include different dimensions for girls.

For the same crime of rape, “both boys and girls may suffer similar forms of stigmatization, STDs and physical and psychosocial trauma, while girls may be faced with unwanted pregnancies, unsafe or forced abortions, resulting in long-term medical complications and sometimes death,” according to the initiative. “They may be considered unmarriageable as a result of the rape, rejected by their families and communities, and face the long-term physical and economic requirements of motherhood.”

Brigid Inder, the initiative’s executive director, told me that they are hopeful that the harms girl child soldiers and other female victims of the UPC have suffered in DRC will be included in the sentencing and subsequent reparations phase. Indeed, the inclusion of sexualized violence is imperative to right the wrong of omission committed by the court and ensure that girl child soldiers are not invisible in the fight to challenge impunity for sexualized crimes.

Toni Trapani is a former associate legal officer at the International Criminal Tribunal for the Former Yugoslavia and is now pursing a PhD in international criminal law at the University of Amsterdam. Her research examines normative impacts of international law on national prosecutions of mass atrocity crimes with special emphasis on gender-based crimes. You can follow her on Twitter: @tonitrapani3.



More articles by Category: Girls, International, Violence against women
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