After over a century of imperialistic exploitation, the Democratic Republic of the Congo (DRC) has experienced decades of fighting between militaries and splintered ethnic militias over control over territory and natural resources amongst others in the Ituri region.
The Union des Patriotes Congolais (UPC) and its military wing, the Force Patriotique pour la Libération du Congo (FPLC), is an armed group in the Ituri region of the DRC. The UPC/FPLC has been implicated in ethnic massacres, torture, abduction, rape and forced recruitment of young people during the Ituri conflict. Fighters drugged child soldiers and subjected them to harsh training regimes and a variety of severe punishments. Child soldiers took part in fighting and intelligence gathering. They were also used as bodyguards, porters, cooks, and cleaners. In addition, girls were raped, sexually enslaved, and forced into marriage with fighters.
Thomas Lubanga was one of founding members and the President of the UPC as well as the Commander-in-Chief of the FPLC. He exercised an overall coordinating role, was involved in the planning of military operations, and played a critical role in providing logistical support. Lubanga was closely involved in making decisions on recruitment policy and he actively supported recruitment initiatives, including those of child soldiers. He also used children as his personal bodyguards.
The International Criminal Court (ICC) was established in 1998 and began operations in 2002. It is headquartered in The Hague in the Netherlands with a Liaison Office to the United Nations in New York and seven Country Offices in Kinshasa and Bunia (DRC), Kampala (Uganda), Bangui (Central African Republic), Abidjan (Côte d’Ivoire), Tbilisi (Georgia), and Bamako (Mali). The ICC is the first independent, permanent international criminal court to investigate and try individuals for the most serious crimes of international concern: genocide, war crimes, crimes against humanity and the crime of aggression. The ICC can investigate and prosecute crimes committed within member states, crimes committed by nationals of member states, and crimes in situations referred to the Court by the United Nations Security Council. It is intended to complement national judicial systems. Therefore, it can exercise its jurisdiction only when national courts are unable or unwilling to prosecute alleged criminals. The Rome Statute serves as the Court’s foundational document. It is a multilateral treaty and States which become party to the it become members of the ICC. As of September 2020, there are 123 ICC Member States. The Office of the Prosecutor opened official investigations in 13 countries and indicted 45 individuals, including Thomas Lubanga in the DRC. The DRC ratified the Rome Statute in 2002 and referred the situation in its territory to the ICC two years later.
The ICC charged Lubanga with, and found him guilty of, amongst other crimes, enlisting and conscripting children under the age of 15 years and using them to participate actively in hostilities. He was sentenced to 14 years imprisonment.
In the case against Lubanga, the Court heard evidence that the UPC/FPLC raped, abducted, and sexually enslaved civilian women. Additionally, girl child soldiers as young as 12 were used not only as combatants, guards, scouts, and porters, performing similar tasks as boys, but they also had to cook, clean, and provide sexual services especially to higher ranking fighters. Some were forced into marriage with a commander. Girls got pregnant as a result of rape inside or outside of forced marriage. Some were forced to bear and raise the child. Some were forced or allowed to have an abortion, and sometimes more than one. Some girls had miscarriages due to poor living conditions. Some were forced to leave the UPC/FPLC when they became pregnant. Without the support of the fighting group, girls were made destitute or forced to return to their families, exposing them to stigmatisation. Girls could not refuse any order for fear of death.
Despite the availability of evidence, Lubanga was not charged with forced marriage, sexual slavery or forced pregnancy as cruel and inhuman treatment. Instead, related evidence was heard in the context of the charge of enlisting, conscripting, and using child soldiers and considered in the context of sentencing (unsuccessfully) and reparations. However, the majority of the Trial Chamber found that it could not consider this evidence because it had not been included in the confirmation of charges decision. Nevertheless, the Chamber discussed it in some detail.
The Chamber found that children actively participate in hostilities in direct and indirect ways. The underlying common feature is that the child is a (potential) target.
“The decisive factor, therefore, in deciding if an ‘indirect’ role is to be treated as active participation in hostilities is whether the support provided by the child to the combatants exposed him or her to real danger as a potential target.” (para 628)
The majority of the Trial Chamber left the question open whether sexual violence could or should fall within the scope of the offense. However, in her Separate and Dissenting Opinion, Judge Odio Benito agreed with the Legal Representative of the Victims and the Prosecutor and found that sexual violence such as sexual assault, sexual slavery and forced marriage was an intrinsic aspect of the use of child soldiers to participate actively in the hostilities. She emphasised that girls are often recruited for sexual purposes and the sexual violence they experience causes serious harm including unwanted pregnancies, maternal or infant deaths, sexually transmitted diseases, psychological harm and social isolation. Based on this understanding, Judge Odio Benito argued for a broader definition of the concept of risk, asserting that it can emanate from enemies as well as their own armed group. Regarding sentencing, Judge Odio Benito found that the sexual violence should be taken into consideration as an aggravating factor. While Judge Odio Benito stressed that sexual violence is an element of the crimes of enlistment, conscription and use of child soldiers to participate actively in hostilities, she also highlighted that crimes of sexual violence are distinct and separate crimes that can be evaluated separately.
In addition to the disagreement as to whether acts of sexual violence could form part of enlisting, conscripting, or using child soldiers, the Pre-Trial Chamber determined that domestic work would fall outside its scope.
The case against Lubanga clearly demonstrates the link between conscripting, enlisting, and using child soldiers and forced marriage/sexual slavery. It highlights that young girls are coerced into armed groups for the purpose of sexual and gender-based exploitation, bringing to mind the notion of conscripted marriage tendered before the Extraordinary Chambers in the Courts of Cambodia in Case 002/02. Arguably, forced child soldiering and forced marriage/sexual slavery are two sides of the same coin and which side is showing depends on what one wants to see. Either way, as Judge Odio Benito and Expert Witness and United Nations Special Representative for the Secretary General for Children in Armed Conflict, Radhika Coomaraswamy, emphasise, it is crucial to fully recognise and address it.
While the Trial Chamber focused on the question whether sexual violence against children falls within the scope of active participation in hostilities, it is still important to also consider their non-sexual, non-combat tasks such as domestic work. Arguably it still supports a fighting group and, following Judge Odio Benito’s understanding of risk as emanating from the enemy as well as one’s own fighting group, potentially makes a person a target.
Conscripting, enlisting and using child soldiers
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