Congolese rebel leader will not be prosecuted for sexual violence
The International Criminal Court (ICC) handed down an Appeal Judgment this afternoon that effectively excludes crimes of sexual slavery and inhuman treatment from the on-going trial of rebel leader Thomas Lubanga, from Ituri, Democratic Republic of Congo (DRC).
Thomas Lubanga is on trial in The Hague for recruiting and actively using children under 15 years as soldiers in his rebel group, the UPC, during the conflict in North Eastern DRC in 2002-3. However, it is widespread knowledge that girls were also recruited and used by rebel groups, including the UPC, as soldiers as well as sex slaves or “wives”.
“They have the added burden of cooking, cleaning and sex service on top of soldiering,” clarified one witness during the on-going trial.
Girls as young as 11 were kidnapped, brought to camps and allocated to commanders who systematically and brutally abused them. “Commanders would get them pregnant, and these girls had to leave the camp and go to the village” explained another witness. Girl victims have testified in closed sessions due to their extreme vulnerability.
Through the ICC’s innovative procedure, which has allowed 97 former child soldiers to be represented in the Court process, victims’ lawyers filed an application trying to have sexual slavery and inhuman treatment recognised as part of the case. This would begin to break the silence about the use of girls by rebel groups and it would also allow girls to benefit from reparation that the ICC and its pioneering Trust Fund for Victims might award if there is a conviction.
Mariana Goetz, Programme Adviser at REDRESS, the human rights NGO which has been working closely with the ICC, local victims’ groups and Congolese lawyers to ensure that the victims’ voices are represented in the trial explained: “if this trial is about the active use of children in hostilities, it must recognise the experience of girls. It is a shame the Prosecutor failed to include sexual violence charges from the outset. Nonetheless, there should be a mechanism to modify the scope of the prosecution if facts come to light during the trial, as they have here.”
Thomas Lubanga is the President of the Union des patriotes congolais (UPC) and commander-in-chief of the Forces patriotiques pour la libération du Congo (FPLC), the UPC’s military wing. Lubanga was arrested on 19 March 2005 and transferred to the Netherlands. His trial for enlisting, conscripting and actively using children under the age of 15 in hostilities began on 29 January 2009.
97 victims were granted the right to participate in the Trial, pursuant to innovative mechanisms in the ICC’s Statute, which allow victims’ views and concerns to be heard, and for them to apply for reparation.
On 22 May 2009, 27 participating victims sought to modify the legal characterisation of the facts described in the charges against Lubanga, so as to include crimes of sexual slavery and inhuman treatment. The Trial Chamber issued notice on 14 July 2009, that the legal characterization of the facts might be subject to change. Judge Fulford, the British presiding Judge on the bench of three judges, issued a minority opinion. On 3 September the Trial Chamber granted requests to appeal the decision from both the accused and the prosecutor.
The two issues on appeal where in essence whether 1) the trial chamber could modify the legal characterization of the facts exceeding those described in the charges, on the basis of evidence at trial; 2) whether the legal characterisation of the facts in the charges against Thomas Lubanga could be modified to include sexual slavery, inhuman treatment and/or cruel treatment.
On 2 October the Trial was put on hold, and on 20 October the victims were granted the right to participate in the appeal, given that they were personally affected, claiming that as children enlisted into this militia, they had suffered sexual slavery, inhuman and/or cruel treatment.
On 8 December, the Appeals Chamber found that the Trial Chamber could not modify the legal characterisation of the facts beyond those described in the charges. The Appeals Chamber did not rule on the second issue, because the Trial Chamber’s finding that it could modify the legal character of the facts beyond those described in the charges, was flawed. As a result, it had not considered in any detail whether sexual slavery, inhuman treatment and/or cruel treatment could be included within the facts that are described in the charges.
The Prosecutor closed its case on 14 July. The Trial is due to resume on 7 January.
See REDRESS’ report “Victims, Perpetrators or Heroes? Child Soldiers Before the ICC”. http://www.redress.org/publications/childsoldiers.pdf
For further information, contact:
REDRESS: Mariana Goetz [email protected] Tel: +44 (0)20 7793 1777 ; http://www.redress.org