Source: All Africa
Dear readers - please find below an article by the Women's Initiatives for Gender Justice reflecting on some of the gender issues for child soldiers in the case against Thomas Lubanga Dyilo. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative.

The Women's Initiatives has over 700 grassroots members and partners in armed conflicts including women victims/survivors, women living in IDP camps, women's rights and development organizations, networks including transitional and criminal justice partners, parliamentarians, and members of the security sector. In addition, we network with a large number of regional and international partners and allies and have an extensive global outreach program reaching over 100,000 supporters who regularly receive our publications, updates, and e-letters.

Prosecutor v Thomas Lubanga Dyilo

The case against Thomas Lubanga Dyilo is the first trial before the International Criminal Court (ICC) and arose out of the investigation into the Situation in the Democratic Republic of the Congo (DRC). Mr. Lubanga has been in the custody of the ICC since March 17, 2006. He is the former President of the Union des patriotes congolais (UPC), and commander-in-chief of the Forces patriotiques pour la libération du Congo (FPLC). Mr. Lubanga has been charged with war crimes relating to the enlistment and conscription of children under the age of 15 years and using children to participate actively in hostilities.[i] On January 26, 2009, Mr. Lubanga became the first accused to stand trial at the ICC.

Outstanding Features

One of the outstanding features of this case is its historic nature: it is the first prosecution before the International Criminal Court, it is the first international criminal trial ever held on the conflict in eastern DRC, and it is also one of the few international criminal cases in history to charge an individual with acts of enlistment and conscription of child soldiers.[ii] These issues have rarely been adjudicated in international criminal law with only the Special Court for Sierra Leone previously prosecuting such crimes including in its case against Charles Taylor, the former President of Sierra Leone.[iii] As such, the ICC charges and prosecution strategy in the Lubanga case were an important opportunity to advance these issues.

The second outstanding feature has been the absence of charges for gender-based crimes in the case against the leader of a militia group widely known to have committed rape, sexual enslavement, and other forms of sexualised violence.

Gender-based violence

It was therefore shocking to many of us that the announcement in 2006 of the case against Thomas Lubanga did not include charges for such crimes and overlooked the suffering of thousands of victims of this conflict and victims of this militia. It was unimaginable to us and to our partners in eastern DRC, grassroots women's rights and peace advocates, that the Office of the Prosecutor (OTP) had not investigated these crimes in their initial strategy. It was also beyond comprehension that the OTP then decided not to undertake any specific investigations into these crimes in the six months between when Mr. Lubanga was taken into ICC custody in March 2006 and before the Confirmation Hearing in November of that year. Still further, the OTP did not investigate these crimes between the Confirmation Hearing and the start of the trial two years later in January 2009. In fact, there was almost three years from when Mr. Lubanga was taken into custody until the trial started - plenty of time in which the OTP could have conducted investigations of gender-based crimes in relation to child soldiers, thereby expanding thematically on their original charges and providing a more accurate reflection of the crime base. In our view, the OTP could have amended the document containing the charges, sought and held a Confirmation Hearing on such charges and still have been ready for trial three years later, with the rights of the accused to prepare his defence fully observed.

Documentation of gender-based crimes

The Women's Initiatives for Gender Justice has been directly involved in the DRC Situation for the past five years. In May and July 2006, we conducted two documentation missions in Ituri, eastern DRC and interviewed victims/survivors of gender-based violence, committed by a range of militias including the UPC. We produced a dossier detailing 51 individual interviews with predominantly women victims/survivors of rape and other forms of sexual violence. Of these, 31 interviewees were victims/survivors specifically of acts of rape and sexual slavery allegedly committed by the UPC.

The OTP has never responded to this dossier.

Integration of gender dimensions within the charges

On September 7, 2006, the Women's Initiatives became the first NGO to file before the ICC.[vi] We filed in relation to the Lubanga case and requested Pre-Trial Chamber I to review the Prosecutor's exercise of discretion in the selection of charges and to determine whether broader charges (specifically for gender-based crimes) could be considered. We also described the impact on victims of the narrow and incomplete charge sheet and the severe limitations this imposed on the ability of victims to be recognised by the Court and to participate in the justice process. Only four victims were recognized at the time of the Lubanga Confirmation Hearing in November 2006, despite the large number of actual victims. This has been rectified somewhat over the years and currently there are 123 victims participating in the trial and represented by six legal counsel.[vii]

When it was clear the OTP would not open investigations into gender-based crimes even in relation to child soldiers, and when the Pre-Trial Chamber declined to invite the Prosecutor to consider conducting such investigations pursuant to Article 61(7)(c)(i) as argued in our filing, we redirected our advocacy towards deepening the understanding of the gender dimensions embedded within the existing charges of enlistment and conscription and forcing children to fight.

Since the beginning of 2008, we have advocated that rape and other forms of sexual violence were an integral component of the UPC conscription process for girls, particularly during the initial abduction phase and period of military training. The perpetration of sexual violence, primarily against girls, was an inherent feature of the UPC's conscription practises. This is borne out in the interviews from our documentation missions as well as our victims' participation programme involving former child soldiers.

Child Soldiers

According to our documentation, both boys and girls were abducted by the UPC. During the training period the children were deprived of sleep, forced to consume drugs, and shown how to fight. They were sometimes taught how to use a gun through the simulation of the use of sticks as if they were machine guns. The girls were regularly raped, many from the moment of abduction and throughout their time with the UPC, with the most intense period reportedly occurring during the initial abduction phase and once they were relocated to the training camps. Rape and sexual slavery were integral to induction into the militia group to the extent that rape could be considered an indicator of conscription for girls. Sexual violence was used as an effective mechanism for demonstrating control and ownership over child soldiers by the UPC and for severing attachment with their lives prior to abduction. Being raped, witnessing rape, being forced to rape were regular occurrences especially during the training phase of new conscriptees. It is clear and certain, that conscription of children by the UPC was not gender-neutral.

• DRC