The International Criminal Court and the Lubanga Conviction

Report
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
Lubanga Dyilo (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 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:
 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

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