Dear Readers,

The following commentary first ran in Women’s Voices, a regular eLetter produced by the Women’s Initiatives for Gender Justice, an international women’s human rights organisation that advocates for gender justice through the International Criminal Court (ICC) and works with women most affected by the conflict situations under investigation by the ICC. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative. To read the full version of the Women’s Voices eLetter, click here.

On March 14, 2012, Trial Chamber I issued the first ever trial judgment of the International Criminal Court (ICC), in the case against Thomas Lubanga Dyilo (Lubanga), President of the Union des patriots Congolais (UPC). This is the first time a Trial Chamber of the ICC has issued a judgment on the guilt or innocence of the accused. The Trial Chamber convicted Lubanga of the war crimes of conscripting and enlisting children under the age of 15 and using them to participate actively in hostilities from September 1, 2002 to August 13, 2003 in Ituri, Province Orientale, Eastern DRC.

Despite evidence of rape and other forms of sexual violence having been committed by Lubanga’s troops, no charges of gender-based crimes were brought by the ICC Prosecutor. As a result, the Trial Chamber could not make any findings of fact on sexual and gender-based crimes. However, evidence of sexual violence featured prominently in the Prosecution’s case, in the opening and closing statements of the Prosecution, and in the testimony of at least 15 Prosecution witnesses. These crimes were also referenced by the victims’ legal representatives, especially those representing former girl soldiers.

Our partners in the DRC have shared their reactions following this historic judgment. Generally, their views are that Lubanga’s conviction is an important step in the fight against impunity in the DRC, however, they regret that Lubanga was not explicitly charged for acts of sexual violence, and that consequently these crimes could not be fully recognized in the Judges’ decision.

‘This judgment is a strong signal to all those who committed serious human rights violations’, said the Ligue pour la solidarité Congolaise (LSC), an organization based in North Kivu that works with more than 1,500 victims/survivors and is one of Women’s Initiatives’ key country-based partners. ‘However’, LSC added, ‘the most surprising aspect of this decision is the absence of charges for sexual and gender-based violence in a case involving the leader of a militia known for committing rape, sexual slavery and other forms of sexual violence. Many women’s and victims’ rights defenders were very shocked to see that the women and girls who were raped by militia men and the other women and girls who were forced to join the armed group of the UPC, some of whom even had children as a consequence of rape, had been ignored by the charging document of the Prosecutor.’ According to LSC, the lack of charges for sexual and gender-based crimes ‘is a minimisation by the Prosecutor and the ICC of the crimes committed against women and neglects the suffering of thousands of victims of armed conflicts and of victims of gender-based violence’.

The Women’s Initiatives’ focal point in Province Orientale and Coordinator of the Centre d’éducation et de recherche pour les droits des femmes, Claudine Bela, said that ‘this decision was welcomed by our partners operating in Ituri’. However, she stated that the population is divided between ‘those who think that he [Lubanga] is a victim of false allegations and remains a political prisoner’ and those who think that ’international justice has correctly done its work, despite some shortcomings, such as the refusal by the Prosecutor to charge the defendant with sexual violence’.

Ms Bela added that ‘while it is true that he [Lubanga] has recruited children under 15 in his militia and forced them to directly participate in the fighting, these children have also suffered many other atrocities, such as sexual violence. Our hope is that during the reparations proceedings the Court will take this aspect into account. In that respect, there is an important job to be done relating to the kind of reparations that the victims want (individual or collective) and how to do it.’

Referring to the second trial in the DRC Situation, which is currently in its final stages and includes charges of rape and sexual slavery, Ms Bela said: ‘We reiterate our wish to see the case of The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui explicitly and seriously addressing the issue of sexual violence’.

With regard to reparations, LSC underlined that ‘medical and psychological examinations are not sufficient to define all damages suffered by the victims’. The social and economic aspects of the attacks suffered also need to be taken into account.  ‘Many women and girls raped by the UPC have tested HIV-positive; they have suffered from multiple internal and external injuries; some of the young women had unwanted pregnancies, and some have been rejected by their family or their community upon their return because they had been with the UPC militia – a group recognised as a source of violence by thousands of people.’

In its judgment, the Trial Chamber left open the possibility of considering sexual violence for the purposes of sentencing and reparations. At the time of writing, a date for the hearings on sentencing and reparations has not yet been scheduled.

Read the press statement by the Women’s Initiatives for Gender Justice on the conviction of Thomas Lubanga Dyilo

Read the timeline of the case against Thomas Lubanga Dyilo

Read an article by Women’s Initiatives’ Executive Director on the ICC, child soldiers and gender justice

Read the first Special Issue of the Legal Eye on the ICC eLetter on the Lubanga Judgment