The ICC Delivers its First Sentence: Sexual Violence Noticeably Missing from Congolese Warlord’s Conviction and Sentencing
On July 10, just 10 days after its 10th anniversary, the International Criminal Court (ICC) delivered its first sentence. The ICC sentenced Thomas Lubanga, a Congolese militia leader, to 14 years in prison for the recruitment and use of child soldiers as a part of his rebel army, the Union of Congolese Patriots, from 2002-2003. Throughout that time, Lubanga and his army abducted, trained and used children to terrorize and kill villagers in the Ituri region of the DRC. While the justices clearly agreed that Lubanga deserved to be sentenced, one of the three judges, Elizabeth Odio Benito of Costa Rica, wrote a dissenting opinion saying that the sentence had been too lenient. Judge Benito suggested that the sentence should have been longer so as to properly reflect the extent of damage done to the child soldiers and their families.
One example of the type of damage that Judge Benito may have been referring to is sexual violence. Among the crimes included in Lubanga’s trial, sexual violence was noticeably missing from the list. This was seemingly a product of the prosecutor’s shortcomings. Presiding judge Adrian Fulford criticized the prosecution saying that “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.” The ICC’s rules of procedure allow for additional crimes to be introduced and considered during the sentencing stage. However, despite this capability, the judges determined that there was insufficient evidence presented to link sexual violence to the proven child soldier recruitment, and sexual violence therefore played no part in Lubanga’s sentence.
This glaring oversight, regardless of whether it be largely at the hands of the prosecution or the judges, is yet another example of the failure to recognize the plight of the female child soldier. Female child soldiers are subjected to the same horrific conditions and treatment as all other child soldiers but suffer even further through sexual violence and diminished ability to escape. Grace Akallo, a former child soldier in the Lord’s Resistance Army in Uganda described how she and other girls as young as 7 were given as wives, where they would then be regularly subjected to sexual abuse. They were sent to fight at the front lines while pregnant, with children on their backs, and some were even left with no choice other than to give birth on the front lines. There is undoubtedly a shared stigma among all child soldiers, but the female experience is significantly different from that of the male and failure to take additional measures to recognize this distinction is a failure to protect women’s rights.
Brigid Inder, executive director of the Women’s Initiative for Gender Justice pointed out the contradictory nature of the scenario because “the Rome Statute contains the most advanced articulation in international criminal law of acts of sexual violence committed, particularly in armed conflict situations, and yet the first case for the ICC didn’t include any charges for gender-based crimes.” Judge Sang-Hyun Song, President of the ICC said that “the ICC promotes a model of gender-sensitive justice… the needs of women and children receive special attention in the ICC,” and that “international justice promises to serve as a warning to those who intend to exploit and abuse the most vulnerable members of our society that they will be tried, prosecuted and punished.” While these remarks are hopeful and comforting, the recent performance by the prosecution and the sentence that followed demonstrated a weak showing that would hardly serve as an effective warning to other exploiters of vulnerable groups. Lubanga’s sentence and the absence of sexual violence from the charges against him highlight the unfortunate ease with which women’s rights can be overlooked and this is unacceptable. A lesson must be learned from the failure to distinguish and defend the specific rights of the female child soldier. It is critical that in future ICC trials and sentencing, all parties involved take it upon themselves to ensure that women’s rights in any and all circumstances are protected and promoted, as a necessary prerequisite pursuant to the “gender-sensitive justice” that Judge Sang-Hyung Song spoke of.