Posted by Mariana on 10 10 2012 | Leave a comment
By Mariana Pena
If there is one aspect that has made the conflict in the Democratic Republic of Congo well-known worldwide, that is the extent and cruelty of gender-based crimes and crimes of sexual violence, which have been committed with complete impunity.
The International Criminal Court’s (ICC) first case, against Thomas Lubanga, has also been well-known for one reason. And that is the fact that gender-based crimes were not reflected in the selection of charges against Lubanga. Generally, the concern was that the charges, focused exclusively on the recruitment, conscription and use of child soldiers – were too narrow and did not reflect the scope of victimisation inflicted by Lubanga’s militia, the Union des patriotes congolais.
Back in 2006, the ICC Prosecutor’s announcement that he would not be pursuing investigations for other crimes committed by Lubanga provoked criticism by international and grass-roots non-governmental organisations as well as victims themselves. Despite these concerns being made public and conveyed directly to the ICC Prosecutor and raised within the framework of the proceedings, the decision was made that charges were not to be extended.
It came as no surprise, years later, when witnesses called to testify about the charges, would also incidentally bring evidence about the fact that child soldiers, and specifically girl soldiers, had been subject to sexual violence and rape. Again, there was a new move – this time by the victims’ lawyers – to try to have these crimes recognised formally within the framework of the proceedings. This motion was received with sympathy by the trial judges, who considered that the evidence being disclosed in trial, could lead them to decide, at the outcome of the trial, that Lubanga could be convicted for sexual slavery among other crimes. This decision, however, was quashed by the Appeals Chamber.
The matter came up again in the judgment on the culpability of the accused. The judges decided that, while evidence on sexual violence had emerged during the trial, Lubanga could not be convicted for those crimes as he had not been formally charged with them. This was a fair decision because indeed Lubanga had not been given a chance to defend himself and counter accusations in relation to those crimes, and particularly his responsibility for sexual violence committed in the context of recruitment and training of child soldiers. At the sentencing stage, the majority of the judges (one judge dissenting) found that sexual violence could not be considered as an aggravating factor. The trial judges, however, deprecated the attitude of the former Prosecutor in relation to the issue of sexual violence in the Lubanga case and pointed out to the Prosecution’s inconsistent strategy in this regard.
On 7 August 2012, the same judges issued a decision on the principles and procedures to be applied to reparations (see earlier post on this blog). The decision is commendable in that it favours a gender approach to reparations and seeks to ensure that women and girl have access to justice and are appropriately involved in reparations processes. Interestingly, the decision makes extensive references to sexual and gender-based violence and the need to adequately compensate that harm. Yet, the same decision states that only victims who have suffered harm as a result of the charges for which Lubanga has been convicted can access reparations. Those are direct and indirect victims. The indirect victims include the family of child soldiers, as well as those who suffered harm to assist victims or prevent victimisation.
Consequently, while there is a recognition of the specificity and gravity of the harm brought about by sexual violence and the need to integrate this aspect in reparations programmes, it seems that only those victims who are also victims of the charges (i.e. mainly child soldiers) can be compensated for the suffering in relation to rape and other crimes of sexual nature. The extent to which other indirect victims, who suffered personal harm as a result of the offences, can access reparations is unclear.
It is relevant to note that the reparations decision is not final on this point, as it has been appealed by the Defence, who argues that reparations cannot go beyond the crimes for which Lubanga has been convicted.
Whatever way the appeals go, it is clear that the Trial Chamber was limited in its use of the evidence received that the case, as framed by the Prosecutor, excluded relevant charges. The experience of the Lubanga case underscores the importance of thinking ahead of reparations and of the concrete impact that the judgement may have on victim communities, when a case is being put together. It seems very difficult indeed to make up, at the reparations stage, for shortcomings of the investigations and/or decisions made by the Prosecutor in the selection of cases. It is significant to recall that the Prosecutor has a duty to take into account the interest of the victims at all times. It is equally important to remember that the pre-trial judges play a very relevant role when they define the scope of the case at the confirmation of charges stage.
*Mariana Pena is an Argentinean lawyer, specialised in international justice and victims’ rights. She’s currently an independent expert and part of the team of lawyers representing victims from Kenya at the ICC. Among other positions, she was previously the International Federation for Human Rights’ (FIDH) Permanent Representative at the ICC.