Call for Lubanga Charges to Cover Rape

A high-ranking United Nations official has urged international judges to bring justice to girls coerced to join a Congolese militia by interpreting the charges against rebel leader Thomas Lubanga Dyilo as including sexual crimes.



Lubanga, who was the first person indicted by the International Criminal Court, ICC, is due to go on trial at the in The Hague in June. He is accused of enlisting and conscripting children under 15, and using them to participate actively in hostilities during the conflict in the Ituri region of north-eastern Democratic Republic of Congo, DRC.



In April, Radhika Coomaraswamy, UN Special Representative for Children and Armed Conflict, travelled to The Hague to present a written submission to judges advising them on how to interpret the charges against Lubanga. She is recommending that the crime of using children to “participate actively” in hostilities should be understood to include the sexual violence suffered by girls forced to join Lubanga’s militia.



“There have been interpretations that [the charge defined as] ‘participate actively’ should be confined to military activities. We argue that using women as sex slaves or wives, in a context of war in the DRC, can be meant as using them actively in hostilities,” Coomaraswamy told IWPR.



Lubanga, head of the Union of Congolese Patriots, UPC, a mainly Hema faction in Ituri in northeastern DRC, stands accused of using children in a period of bloody inter-ethnic fighting against the Lendu ethnic group at the beginning of the decade.



The United Nations Children’s Fund, UNICEF, estimates that there are currently 30,000 child soldiers in the DRC, fighting or living with armed groups. Between 30 and 40 per cent of these minors are girls.



In February, the ICC’s Trial Chamber invited Coomaraswamy – whose role mandates her to work closely with international bodies to ensure the protection of children in armed conflict – to submit written observations on the definition of the charges.



Her submission took the form of an “amicus curiae” (friend of the court”) brief, which may now be used to assist judges in the case.



Hala El Amine, Associate Legal Outreach Officer at the ICC, explained the reason why the court solicits this kind of document, “The acceptance of [the] brief does not imply that the court endorses the position set out therein, but rather that the court believes the amicus – the person or agency submitting the brief – may be able to be of assistance to the court in its determination of truth. In other words, that person or agency has a particular knowledge, interest or expertise of which the court should be made aware.”



The defence responded to the amicus curiae submission on March 28 with a statement saying it was too early to respond to Coomaraswamy’s remarks about the definitions of specific terms. It said these issues would be addressed during the trial itself, and asked the Trial Chamber to grant both defence and prosecution an opportunity to comment on them “in due course”.



In her brief, the special representative noted that when Lubanga’s charges were confirmed, the pre-trial chamber placed an outer limit on the standard to be used in defining “participate actively”, stating that it did not apply when the activity in question was “manifestly without connection to hostilities”. Thus, in crude terms, the definition would include combatants, but exclude individuals used by an armed force in non-combatant auxiliary roles or exploited for sexual purposes.



Coomaraswamy said the decision to set this threshold for deciding what activities fitted the definition was “ill-conceived and [likely] to exclude a great number of child soldiers – particularly girls” from being considered victims of the crime.



She told the ICC that “the exclusion of girls from the definition of child soldiers would represent an insupportable break from well-established international consensus”.



As her brief noted, the definition of child soldier used for the 1997 Cape Town Principles “recognised that ‘child soldier’ includes ‘girls recruited for sexual purposes and for forced marriage’”. The Cape Town Principles were the first significant set of child protection standards which focus on children associated with fighting forces, and serve as guidelines for agencies working in war zones.



In her brief, Coomaraswamy reminded the court that the Paris Principles of last year, which reviewed the earlier set of principles, renewed the status of child soldier for all minors used for sexual purposes.



The distinction between active combat and other activities is in any case blurred. Coomaraswamy illustrated this point by recounting conversations she had with girls in eastern DRC, who spoke of being used as fighters one minute, a "wife" or "sex slave" the next, and domestic servants and food-providers at other times.



“Children are forced to play multiple roles – asked to kill and defend, carry heavy burdens, spy on villages and transmit messages. They are asked to perform many other functions and their use differs from group to group,” Coomaraswamy told the ICC.



She went on to share the testimony of 12-year-old Eva who was abducted on her way to school, subjected to sexual abuse and kept in a state of forced nudity. “She worked in the camp cooking, cleaning and being a sexual slave, and was often taken along for armed attacks on the villages to be a ‘porter’ to carry the looted goods,” wrote Coomaraswamy.



Since Lubanga’s arrest in 2006, pressure groups have questioned why the ICC did not add crimes of sexual violence to the charges against him.



Brigid Inder from Women’s Initiative for Gender Justice – an international human rights organisation which has documented testimonies of rape survivors in Ituri – said an integral part of the process of enlistment and conscription for girls in the region was rape and sexual violence.



“It is part of the way they are broken down and dominated, and separated from their families and values, and made into a fighter and a fighting force,” she told IWPR.



However, in a pretrial document from August 2006, in which prosecutors detailed the charges against Lubanga, sexual violence suffered by girl soldiers was noticeably absent from references to the crime of ‘using children to participate actively in hostilities’.



In the document, prosecutors said that children were forced to march to training camps in Ituri belonging to the UPC’s armed wing, the Patriotic Forces for the Liberation of Congo, FPLC, where they were subjected to two months of military training which included drill and weapons handling.



The indictment said FPLC commanders provided each child with a uniform and gun, and ordered boys and girls to fight on the front line and kill all Lendu. Those reluctant to do so were threatened with execution.



Prosecutors also cited evidence that children were forced to commit sexual crimes against civilians.



One example was that of a thirteen-year-old girl abducted from the side of the road in 2002 by FPLC troops, who threatened to kill her if she did not get into their truck.



She was trained to use bayonets and daggers, and to fight with sticks, and was told she would be recaptured and killed if she tried to escape. At the end of her two months’ training, she was given a military uniform, a firearm weapon and two magazines of ammunition.



In early 2003, under threat of being shot, the girl was made to participate in an attack on Largu, a Lendu village north of Bunia, in the course of which she was ordered to tie the testicles of a Lendu prisoner with a wire. The prisoner died as a result of the maltreatment.



Last month, Coomaraswamy told IWPR that sexual abuse was part of the experience of girl soldiers forcibly recruited to the UPC.



She is calling for the terms “using” and “participating” – which are narrowly defined in the ICC’s statute to mean military activities linked to combat – such as scouting, spying and sabotage as well as fighting – to be broadened to include the sexual violence that girls had to endure during their time as conscripted or enlisted child soldiers.



“We are arguing that the word ‘using’ should include having been abducted, being a child sex slave or a wife, to reflect the girl child’s experience. It is a combat situation, but their sex lives have been taken up through the participation in warfare,” she told IWPR.



“Because of the context and nature of these groups, the activities are not kept separate, and many of these girls are one moment wives, and the next moment combatants and then domestic aides.”



Coomaraswamy is adamant that through coerced participation as domestic labour and “wives”, girls form part of the fighting force, whether or not they have a direct involvement in military operations.



She said the court must determine, on a case-by-case basis, whether a child's participation served an essential support function to the armed group during the conflict.



She explained that the broader interpretation she is recommending would follow existing UN guidelines, which recognise all children "participating in and associated with armed groups and forces" as victims of crime.



Inder agrees that the current charges against Lubanga can be interpreted to include the sexual abuse of girl soldiers.



“During the abduction and training phase, rape is a core, regular part of the process of enlistment and conscription for girls in the DRC,” she said.



“Enlistment and conscription are acts that require a process, and an integral part of this process of girls becoming child soldiers is rape and other forms of sexual violence.”



However, Mariana Pena from the International Federation of Human Rights, FIDH, cautions that a broader interpretation of Lubanga’s charge sheet cannot compensate for the fact that he has not been charged with sexual violence.



“Coomaraswamy wants to present the whole picture, and we welcome this, but the whole picture should have been shown, with Lubanga being charged with crimes of sexual violence,” she said. “Unfortunately, a wider interpretation of the current charges will not mean he is convicted of sexual violence charges”.



Coomaraswamy agrees that this would be desirable, in addition to her recommendation about broadening the definition of child soldier. She told IWPR that for the ICC to be a deterrent to perpetrators, there needs to be a separate sexual violence indictment, in addition to the existing charges.



She drew a comparison with the Foca case at the International Criminal Tribunal for the former Yugoslavia, which set an important precedent in classifying rape as a crime against humanity.



In this trial, three Bosnian men – Zoran Vukovic, Radomir Kovac and Dragoljub Kunarac – were found guilty in 2001 of raping and sexually enslaving Muslim women in the southeastern Bosnian town of Foca, and selling or renting them for forced prostitution to other soldiers.



“In [this case] sexual violence was indicted as torture, rape, outrages on personal dignity. Sexual violence in a fighting force such as Lubanga’s is on the one hand, recruitment and conscription of child soldiers, and on the other hand, rape,” she said.



“There does not have to be only one [charge]. A double indictment would be good”.



The treatment of war crimes against girl soldiers at the ICC may also be influenced by a recent appeals judgement at the Special Court for Sierra Leone, SCSL, in Freetown, where this year, for the first time, judges recognised the crime of ‘forced marriage’ under international law.



In June last year, Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu of the rebel Armed Forces Revolutionary Council, were found guilty of war crimes and crimes against humanity which included murder, rape, sexual slavery and conscripting child soldiers.



Crucially, the trial chamber used a broad interpretation of the charge of using child soldiers to participate in a conflict to include non-military activities.



“Using children to ‘participate actively in the hostilities’ encompasses putting their lives directly at risk in combat... any labour or support that gives effect to, or helps maintain, operations in a conflict constitutes active participation,” stated the judgement.



In convicting the men, judges at the SCSL threw out the charge of ‘forced marriage’ which had been in the indictment, saying they saw no need to considerate it as a crime separate from sexual slavery.



However, Chief Prosecutor Stephen Rapp appealed the decision and the appeal chamber overturned the acquittal in February this year, recognising that forced marriage was a crime against humanity in its own right, under humanitarian law.



Rapp told IWPR he welcomed the finding, although he admits there are challenges to making such a charge stick.



“One of the most difficult aspects of this crime is the attitude that the girls were accomplices rather than victims,” he said. “They were conscripted as wives, and had to travel with rebel leaders and cook food that had been looted in operations, and consume that food. Their role makes them appear part of the court of the rebels”.



In spite of this, Rapp hopes that the decision by the appeals judges in Sierra Leone will have an impact on ICC trials with application to crimes against girls held by armed groups.



He hopes that prosecutors will soon secure the first-ever conviction of ‘forced marriage’ against members of another Sierra Leonean paramilitary group on trial at the SCSL, the Revolutionary United Front. In this case, similar evidence has been presented against the three accused, Issa Hassan Sesay, Morris Kallon and Augustine Gbao.



This could influence proceedings at the ICC, said Rapp.



“When these decisions are rendered, they are highly persuasive on other courts so to that extent, we are helping to create laws that the ICC will be prosecuting.”



Coomaraswamy certainly hopes so. She ends her amicus brief to the ICC by explaining how girl combatants often end up “invisible” in post-conflict situations.



"Because they are also wives and domestic aides, they either slip away or are not brought forward for DDR [disarmament, demobilisation and rehabilitation] programmes. Commanders prefer to ‘keep their women’, who often father their children, and even if the girls are combatants, they are not released with the rest,” said the brief.



“Their complicated status makes them particularly vulnerable. They are recruited as child soldiers and sex slaves, but are invisible when it comes to the counting.”



Katy Glassborow is an IWPR reporter in The Hague.