The International Criminal Court and the Lubanga Conviction TAKING STOCK OF GENDER JUSTICE

The International Criminal Court and the Lubanga ConvictionTAKING STOCK OF GENDER JUSTICE Tathiana Flores Acuña, Ph.D. Visiting Fellow, CHR 17 July , 2012

SEXUAL RELATED CRIMES IN DRC • The Democratic Republic of the Congo (DRC) is known to have one of the highest rates of sexual violence in the world, and there is significant evidence, gathered by local and international organisations of rape and other forms of sexual violence taking place in the Ituri region in eastern DRC. • In 2009, the UN Special Representative for Sexual Violence in Conflict, Margot Wallström, referred to the DRC as the 'rape capital of the world'.

SEXUAL RELATED CRIMES IN DRC: ROLE OF INGOS-NOGS-CSOS • Efforts towards repression of sexual related crimes. Final results: provisions incorporated in the Rome Statute • Former Yugoslavia- Sexual related crimes enormous scale • Lobbying for explicit formulation of crimes • Years of efforts culminated in the adoption of a Rome Statute containing specific categories of sexual related crimes

ROME STATUTE • Art 7 Crimes against humanity For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity

ROME STATUTE • ARTICLE 8 -WAR CRIMES 1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. 2. For the purpose of this Statute, "war crimes" means: (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: (xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions

Efforts to incorporate sexual related crimes • Extensive evidence on sexual violence was heard throughout the trial proceedings • 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”

Legal Representative for participating victims • Confirmed these facts asserting that “rape began as soon as they were abducted and continued throughout their stay” • 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 • 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”

REGULATION 55 Rules of Procedure and Evidence • 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 and add the crimes of sexual slavery and inhuman and cruel treatment to the existing characterisation • Regulation 55 provides that the Chamber may change the legal characterisation of the facts in its final decision on the merits based on the evidence presented before it during the trial

LEGAL REPRESENTATIVES • In their filing 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 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

CONVICTION • Thomas Lubanga was convicted of the three separate war crimes • conscripting and • enlisting children under the age of 15 • using them to participate actively in hostilities

TRIAL SENTENCE LUBANGA • On 10 July 2012, Trial Chamber I sentenced Thomas LubangaDyilo (Lubanga) to 14 years imprisonment, in the first sentencing judgement issued by the ICC • The case involved two stays of proceedings, an adjournment, 67 witnesses and the participation of 129 victims. The Chamber will issue a reparations order at a later date

INCLUSION OF SEXUAL RELATED CRIMES IN THE CHARGES • Since 2008, based on documentation and analysis, several organizations had advocated that sexual violence is an integral component of each of the three crimes for which Lubanga was charged and convicted • Information presented showed that sexual violence was often used against child soldiers, especially girl soldiers, to demonstrate control and ownership and to sever any attachment with their lives prior to abduction

UNSRSG CHILDREN IN ARMED CONFLICT • The sexual violence was recognised in the expert testimony of RadhikaCoomaraswamy, UN Special Representative for the Secretary General (UNSRSG) for Children in Armed Conflict • She highlighted that girls recruited into armed groups play multiple roles: • Combat • scouting • portering • in addition to sexual slavery and • forced marriage

UNSRSG CHILDREN IN ARMED CONFLICT • 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” She added that 'though some are mainly combatants, others may be mainly sex slaves … they have all been recruited and enlisted into this group…'

TRUST FUND FOR VICTIMS • TFV 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 • Noted that in interviews carried out by the Trust Fund in 2010 with former child soldier beneficiaries of its assistance projects, over 48% of former child soldiers (of whom 66.7% were girls and 32.2% were boys)

Quotations of the Sentencing Judgment • Para 37. “ The crime of using children to participate actively in hostilities involves exposing them to real danger as potential targets.” • Para 38. “As the Chamber described in the Judgment, the principal historical objective underlying the prohibition against the use of child soldiers is to protect children under the age of 15 from the risks that are associated with armed conflict, and particularly they are directed at securing their physical and psychological wellbeing”.

LEGAL QUESTIONS-SENTENCING JUDGMENT • Balance defense, prosecution and the interest of the victims • Para 60. of the Sentencing Judgment: “not only did the former Prosecutor fail to apply to include sexual violence or sexual slavery at any stage during these proceedings, including in the original charges, but he actively opposed taking this step during the trial when he submitted that it would cause unfairness to the accused if he was convicted on this basis. Notwithstanding this stance on his part throughout these proceedings, he suggested that sexual violence ought to be considered for the purposes of sentencing.”

CHAMBER SENTENCING • In its Para 67 the Chamber affirms: “The Chamber is entitled to consider sexual violence under Rule 145(l)(c) of the Rules as part of: (i) the harm suffered by the victims; (ii) the nature of the unlawful behaviour; and (iii) the circumstances of manner in which the crime was committed; additionally, this can be considered as showing the crime was committed with particular cruelty.”

CHAMBER SENTENCING • In its Para 69 the Chamber states: “However, that said, it remains necessary for the Chamber to be satisfied beyond reasonable doubt that: (i) child soldiers under 15 were subjected to sexual violence; and (ii) this can be attributed to Mr Lubanga in a manner that reflects his culpability, pursuant to Rule 145(1 )(a) of the Rules.”

CHAMBER SENTENCING • The Chamber arrives to the conclusion in Para 74 that: “On the basis of the totality of the evidence introduced during the trial on this issue, the Majority is unable to conclude that sexual violence against the children who were recruited was sufficiently widespread that it could be characterised as occurring in the ordinary course of the implementation of the common plan for which Mr Lubanga is responsible.”

DISSENTING OPINION JUDGE ODIO BENITO • Based on Article 21 Rome Statute • Article sets out the applicable law that the Court shall apply: “The application and interpretation of law pursuant to this article must be consistent with internationally recognised human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.” • Judge Odio Benito characterised sexual violence as inherent in the use of child soldiers. She added that 'sexual violence is an intrinsic element of the criminal conduct of “use to participate actively in the hostilities”'.

DISSENTING OPINION JUDGE ODIO BENITO • Judge Odio Benito further underscored the different and disparate impact that sexual violence had upon female child soldiers • Explained that “Sexual violence and enslavement are the main crimes committed against girls and their illegal recruitment is often intended for that purpose.” • 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”.

CONTEXT AND RELEVANCE OF SENTENCING JUDGMENT • Historical moment-international and broader perspective of the role of international justice • Responsibility vis-à-vis international community as a whole

FUTURE STEPS TOWARDS JUSTICE • In my opinion, 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 • Irrelevant 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

REPARATIONS PHASE • While a framework for reparations is provided in the Rome Statute, the Lubanga case presents the first occasion for an ICC Trial Chamber to undertake reparations proceedings • Following Lubanga's conviction on 14 March 2012, Trial Chamber I issued a 'Scheduling order concerning timetable for sentencing and reparations'

REPARATIONS PHASE • The Trial Chamber invited submissions from parties and participants, as well as the Registry and the TFV on (a) the principles to be applied by the Chamber with regard to reparations (b) the procedure to be followed by the Chamber in the reparations • The Trial Chamber also invited other individuals or interested parties to request leave to submit observations on these issues

REPARATIONS PHASE • The integration of women and girls in reparations consultations is of particular importance • Types of crimes suffered by women and girls, • gender-inequalities, and • their access to services and programmes for justice • Need to ensure that a reparations order does not have the unintended effect of replicating gender discrimination

REPARATIONS PHASE • Reparations should: (i) not only restorative, but also transformative (ii) address existing gender inequalities within communities (iii) contribute to advancing gender equality through the types of programmes funded and the type of support provided

THANKS QUESTIONS, COMMENTS REMARKS

The International Criminal Court and the Lubanga Conviction TAKING STOCK OF GENDER JUSTICE