MS. Ugoji Adanma Eze, Esq. President and CEO, Eng Aja Eze Foundation
Patrick Mc Caffrey, Chairman & co-Founder, Brabham & Associate Ltd
Jarmo Viinanen, Ambassador, Permanent Representative of Finland to the United Nations
“The Incidence of the Female Soldier and the International Criminal Court”
Article by: Ugoji Adanma Eze Esq
“ It is our strong belief that justice cannot be done in or out of the courtroom if the voices of female Child Soldiers are not heard.”
“…the crimes committed towards female child soldiers need to be analyzed specifically. Our focus should shift from” children with arms” to children who are affected by arms”
“In the context of crime of enlisting and conscripting child soldiers.I as the new Prosecutor of the ICC, will make sure that such crimes and victims will no longer be ignored and perpetrators will face justice.”
Ms.Fatou Bensouda, Incoming Prosecutor Elect speaking at the International Day of the African Child: Female Child Soldier and the International Criminal Court”
“Finland’s human rights policy has for a long time had a specific focus on the rights of the Child. Girls affected by armed conflict are amongst the most vulnerable children and therefore the promotion and protection of their rights deserves our concerted support.”
H.E.Mr. Jarmo Viiananen, Ambassador and Permanent Representative of Finland to the United Nations speaking at the International Day of the African Child: The Incidence of the Female Child Soldier and the ICC”
“ There is a need to invest in building or restoring the capacity of these systems in states in the midst of or emerging from conflict. With such support these systems may be more likely to overcome challenges in prosecuting these crimes such as lack of political will or lack of ability due to limited resources or being in a state of disorder.”
H.E.Mrs Josephine Ojiambo, Deputy Permanent Representative of The Republic of Kenya to the United Nations.
The Engr. Aja Eze Foundation hosted in collaboration with the Permanent Mission of Finland to the United Nations and the American Society of International Lawyers on the 4th of June 2012 the International Day of the African Child.
“The Incidence of the Female Child Soldier and the International Criminal Court”
The CEO and Founder of the Eng Aja Eze Foundation decided to focus on the Female child soldier because she felt that they are the invisible and most vulnerable groups during conflict.
The Incoming Prosecutor Elect Ms Fatou Bensouda laid out in a most compelling manner what her plans were as regards this phenomena.
Ms Bensouda pointed out quite rightly that one of the most fundamental aspects of the crime of utilizing child soldiers in armed conflict is the gender aspect. She also said that it is estimated that there are 250,000 Child Soldiers in the world and also that of these 40% are children.
Reference was made to the fact that UNICEF’s submission on reparations to the judges in the Lubanga Case that numerous girls who had been through these atrocities try to keep their pats hidden to avoid stigmatization in their communities. The long term effect of this is that it prevents victims from being taken into account in the healing process. It also creates prevents the difficulties in ending impunity for the perpetrators.
The Incoming perpetrator also stated that there is a pressing need to focus on this phenomena due to the example of what occurred in Sierra Leone.
The DDR which were performed in the aftermath of the armed conflict, were not designed with a specific focus on girl soldiers; as the programs often required the child soldiers to hand in a weapon, a process which clearly excluded the female child soldiers as they did not often carry guns.
According to UNICEF, at the end of the disarmament and demobilization in Sierra Leone, 6,845 children, of which just 547 were girls. However a substantial amount of the girls were not included in the counting nor in the DDR program itself. This lack of focus thus results in the lack of female participation in official reintegration programs, a direct consequence of which is that numerous former female combatants are often left with no support when they leave the armed forces and find themselves in a situation where they are trading sex for food, shelter or money merely to survive.
The incoming Prosecutor elect then spoke at great lengths of the recent international developments in this sphere and how the Office of the Prosecutor of the ICC has been working to ensure that, never again the plight of these girls is neither forgotten nor trivialized; that they are not invisible from both the scope of the Law and the reintegration programs.
Firstly, as regards international developments in gender crimes and The Rome Statute. The Chair Robert Jackson , the Chief Prosecutor of the Nuremberg Tribunal, decided not to present sexual crimes in the cases against the Nazi Leaders.
Hence the recognition of “ gender Violence ‘ or “ Gender crimes’ is a recent development. The 1990s witnessed the emphasis on gender crimes, this is especially so during the conflict on the former Yugoslavia; which paved the way of how rape and other genres of sexual violence could be instrumentalised in a campaign of genocide.
The landmark case of the Akayesu in 1998 , which was delivered by the Trial Chamber of the International Criminal Tribunal for Rwanda on the 2nd of September 1998.For the first time in history, rape was explicitly recognized as an instrument of genocide.
If I may quote from the Akayesu Case, rape is used to ” kill the will, the spirit and life itself.’
The decision of the ICTR also provided a definition of rape- namely “ a physical invasion of a sexual nature under circumstances which are coercive.”
This area of the law was further strengthened by the landmark decision in the 2009 decision of the Special Court for Sierra Leone. For the first time in history convictions were brought regarding crimes against humanity of sexual slavery and forced marriage as an inhumane act.
The direct result of these recent developments is the Rome Statute of the International Criminal Court. Gender related violence or “gender crimes” is a firmly established concept in the Rome Statute.
By virtue of Article 7(1) (h) prosecutions against any identifiable group or collectivity on grounds of gender could constitute a crime against humanity if committed in connection with other genres of crimes against humanity or other crimes under jurisdiction of the court.
Gender crimes are characterized as rape, sexual slavery, enforced prostitution, forced pregnancy, enslavement, trafficking. These are all categorized as war crimes and /or crimes against humanity.
In short, according to Ms Fatou Bensouda we now have “ The Rome Statute , to give voice and language to these crimes .”
The incoming Prosecutor Elect, then spoke on the Office of the Prosecutors strategies, policies and cases, namely by virtue of its mandate , Article 54(1)(B) of the Rome Statute , permits the OTP to engage in gender related issues in multiple ways; namely”……..take in to account the nature of crime in particular where it involves sexual violence, gender violence, or violence against children.”
Article 68(1) of the said statute deals with the issue of sensitivity as regards gender issues in relation to the protection of witnesses and victims.
“.. the court … shall have regard to all the relevant factors , including gender and the nature of the crime involves sexual or gender violence against children.”
Additionally, Article 42(9) of the said Statute mandates the Prosecutor to appoint advisers with legal expertise on specific sexual and gender violence.
Ms Fatou Bensouda has actually been since the commencement of her mandate as Deputy Prosecutor the focal point for gender related issues.
She spoke of the Gender and Child Unit (GCU) which advises her and provides support to the offices divisions, from pre-analysis through to prosecution phases..The said unit comprises of advisers with legal and psycho-social expertise to deal specifically with gender and children’s issues.
The OTP’s sensitivity toward gender aspect of crimes is well reflected in its investigation into cases regarding Child Soldiers. It had brought charges of enlistment, conscription the first and the use of children.
The first trial before the court against Thomas Lubanga Dyilo was indeed a landmark in the international Criminal Law History. With the verdict, enlistment and conscription of children under the age of 15, for the first tme was internationally criminalized.
The case also had very strong gender aspect.The use of Child Soldiers was also included in the arrest warrant for Bosco Ntaganda.The OTP has also recently applied for a new arrest warrant to include charges of rape, sexual slavery, murder, persecution and intentional attack against civilians and pillaging.
The Incoming Prosecutor Elect spoke at length about the interaction of her office with Female Child Soldiers.
“ At the time of interview, some of them were very fragile and emotional, whereas one was very adamant not to be considered a victim………. That victims and witnesses it interacts with, especially those of sexual violence crimes and children, will in most cases be very fragile.
During preparation for deployment to the field to conduct interviews of female child soldiers, the office addresses issues in order to guarantee maintaining their dignity, physical and psychological well-being.’
Consent of the parents o care givers of the female Child soldiers were obtained prior to any interaction with them. Support was offered to them from the outset by the OTP; such as being able to attend interviews with an accompanying person of their choice. Psycho-social pre-interview assessment were also conducted by a psycho-social expert, who determines the suitability or otherwise of the child to be to be interviewed.
The principle of confidentiality and non-exposure is also strictly observed. Article 26 of the Rome Statute provides immunity from prosecution for crimes committed.
The victims and Witnesses Unit in consultation with the office of the Prosecutor, has developed both an Initial Response System and Secondary Response System.
Witnesses in need of assistance particularly medical and psychological interventions are referred to VWU for provision of the assistance.
The incoming Prosecutor Elect also spoke of the need to “.focus on the planning, designing and implementing of prevention, demobilization and reintegration programs so that the unique needs of girls are taking into consideration from the inception. Their voices must be heard so that the international community understands their story and their plight as they look for ways to make contribution, do something meaningful and productive with their life and make up for the harm inflicted on them through any possible means.”
The Incoming Prosecutor also spoke at length about the landmark Lubanga verdict. This was a landmark decision in relation to gender crimes and child soldiers.
“In the training camps, girl soldiers were the daily victims of rape by the commanders. Girl Soldiers , some aged twelve years old , were used as cooks, and fighters, cleaners and spies, scouts and sexual slaves.
One minute they would carry a gun; the next minute , they would serve meals to the commanders; the next minute , the commanders would rape them..
“ Their right to childhood, to safety and protection, to physical integrity, education, to exercising their reproductive rights and health and sexual autonomy , were denied and destroyed.”
Although gender crimes were not distinctly present in the final verdict by the judges, Judge Odio-Benito provided a separate opinion, agreeing with the prosecutor that gender crimes were embedded in the recruiting of children and in their use in hostilities:
“It becomes irrelevant , therefore , if the prosecution submitted the charges as separate crimes or rightfully included them as embedded in the crimes of which Mr Lunbanga is accused. The harm suffered by victims is not only reserved for reparations proceedings but should also be a fundamental aspect of the Chambers evaluation of crimes committed.”
Judge Odio-Benito found that the invisibility of sexual violence in the legal concept leads to discrimination against the victims of recruitment.
As the incoming Prosecutor stated …”the office has made it its mission to ensure that Thomas Lubanga Dyilo be held criminally responsible for the atrocities committed against those little girl soldiers, when he enlisted and conscripted them to be used as sexual prey, while also using them in combat.”
The Incoming Prosecutor also pointed out the effects of armed conflicts and international crimes over the education of children. She mentioned the work which Education for All, an education chaired by Sheikha Mozah of Qatar, UNESCO Special Envoy for Basic and Higher Education conducted on children in conflict zones.
Their findings revealed that Thomas Lubanga Dyilos Crime’s interrupted , delayed and denied the right to education to Ituri Children.” Because of Mr Lubanga Dyilo, these children lost out on their education.”
“ And Ituri is just one example of the devastating effect that international crimes have on education: according to the Education for All Report published by UNESCO in 2011, 28 million children of primary school age in conflict-affected poor countries are out of school. These children need to be included in the system as education is the most effective way of reintegrating them back into their communities.”
H.E .Mr Jarmo Viinanen Ambassador and Permanent Representative of Finland to the United Nations stated that Finland has been a strong supporter of the International Criminal Court and “..our work in the Assembly of State Parties to the Rome Statute has focused very much on victim’s issues.
The question of reparations to victim’s is one of the current topics in this regard. We support the courts Trust Fund for Victims and we look forward to the court’s ruling on reparations in the Lubanga case, as it will be an important bench mark in establishing principle’s relating to reparation.”
He further went on to say that “… even though the court did not use the term” Children associated with armed forces” as many child rights advocates had hoped for, it recognized that also the children who do not carry arms or take active part in hostilities , but instead engaged in various supportive tasks are covered by the definition……”
In her closing remarks, H.E.Mrs Josephine Ojiambo, the Deputy Permanent Representative of Kenya to the United Nations mentioned that National governments must bear the primary obligation for criminal prosecutions of those responsible for these crimes against children.
“National judicial systems and other national level accountability mechanisms have potential for reaching a larger number of accused perpetrators than the International Criminal Court. They have potential for more sweeping impact as they are closer to the affected populations.”
Reference was made to the Maputo Instrument. An important instrument of International Law it is a frame of reference for cooperation among the International Community and among African Governments.
It provides points of reference for the realization of the Human Rights of Women in Africa. Ratification of the Protocol can be urged during the process of political dialogue.
We need to focus on the Female Child Soldiers. It is our duty.
MS. Ugoji Adanma Eze, Esq. President and CEO, Eng Aja Eze Foundation
Permanent Observer Mission to the United Nations,
Fatou Bensouda, Prosecuter Elect, International Criminal Court
Prosecutor‐elect of the International Criminal Court
The incidence of the Female Child Soldier and the International
Eng Aja Eze Foundation
4 June 2012
As the Special Representative for Children and Armed Conflict of the UN Secretary General Radhika Coomaraswamy indicated while testifying as an expert witness in Lubanga case at the ICC: “girls play multiple roles in conflict, including combat, pottering, scouting but also sexual slavery […]
We need to draw attention to the roles girls play and the need to protect them in every context.”
Indeed, one of the most fundamental aspects of the crime of utilizing child soldiers in armed conflicts is its gender aspect. According to estimations, there are 250.000 childsoldiers in the world today; 40% of these children.
The main functions of these girls are to act as soldiers but also as “wives” of male soldiers, a mere euphemism for sex slaves. Girls are, indeed, more susceptible to being abused as child soldiers due to the multiplicity of their assigned roles, and especially when they are used as sex slaves.
This vulnerability, deeply linked with social gender representations, is particularly reflected in the stigmatization girls soldiers may face during the reintegration process.
Indeed, sexually exploited girls are often seen as being “immoral” or “unclean” by the members of their community.
As UNICEF noted in their submissions on reparations to the Judges in the Lubanga case, many girls who have been through these atrocities try to keep their pasts hidden to avoid stigmatization in their communities. This prevents victims from being taken into account to see their suffering addressed in an attempt to heal. It also creates significant outreach problems for ending the impunity of perpetrators.
The situation in Sierra Leone provides an illuminating example of why we need to focus more carefully on girl soldiers. The Disarmament, Demobilization and Reintegration (DDR) programs in Sierra Leone, carried out in the aftermath of the armed conflict, were not designed with a specific focus on girl soldiers. The programs often required the child soldiers to hand in a weapon, a process which excluded those who did not carry a gun. According to UNICEF, at the end of the disarmament and demobilization in Sierra Leone, 6,845 children were demobilized, of which 547 were girls, but a good number of the girls were left behind and did not go through the DDR program itself.
As many observers have indicated, this lack of focus results in lack of female participation in official reintegration programs, and as a consequence, many girls who leave the armed forces end up with little support, no financial means and forced into situations where they are trading sex for food, shelter or money, simply to survive.
I would like to talk to you today about what the recent international developments made to address this issue, and how the Office of the Prosecutor of the ICC has been working to ensure that never again, the plight of these girls is forgotten or trivialized; that they are not invisible from the scope of the law and the
1) INTERNATIONAL DEVELOPMENTS REGARDING GENDER CRIMES AND
THE ROME STATUTE
The recognition of “gender violence” or “gender crimes” as such is relatively recent development in international law. Remember that Robert Jackson, the Chief Prosecutor of the Nuremberg Tribunal, decided not to present sexual crimes in the case against Nazi Leaders.
It was only in the early 1990s that there was a greater emphasis on gender crimes. This impetus was furthered with the efforts of obtaining accountability in the mid‐90s for atrocities committed against women during the conflict in the former Yugoslavia, which paved the way of the establishment of how rape and other forms of sexual violence could be instrumentalised in a campaign of genocide. This equally contributed to the expansion of the understanding of sexual or gender violence as war crimes and crimes against humanity.
But perhaps the most groundbreaking decision advancing gender jurisprudence worldwide was the Akayesu judgment delivered by the Trial Chamber of the International Criminal Tribunal for Rwanda on 2 September 1998. For the first time in history, rape was explicitly recognized as an instrument of genocide. As described by the ICTR in the Akayesu case, rape is used to “kill the will, the spirit, and life itself”.
The decision by the ICTR Chamber provided a definition of rape as well, – “a physical invasion of a sexual nature under circumstances which are coercive” – placing gender crimes in a larger context. The evolution of the international criminal law regarding gender crimes has continued in the recent years. The Special Court for Sierra Leone’s RUF trial judgement in 2009 constitutes a landmark, as for the first time in history, an international or internationalized tribunal has brought convictions regarding crimes against humanity of sexual slavery and forced marriage as an inhumane act.
The Rome Statute of the International Criminal Court is a result of these recent developments in international law and progress in the human rights field, which the international community as a whole, composed of representatives of governments, NGOs, international institutions, have recognised gender violence and gender crimes as crimes of international concern.
Gender related violence or “gender crimes” is a firmly established concept in the Rome Statute. Under Article 7(1)(h), persecution against any identifiable group or collectivity on grounds of gender could constitute a crime against humanity if committed in connection with other types of crimes against humanity or other crimes under the jurisdiction of the Court. Various provisions of the Statute prescribe what can be characterized as gender crimes. Rape, sexual slavery, enforced prostitution, forced pregnancy and enslavement, including trafficking, are some of these characterizations which can be categorized as war crimes and/or crimes against humanity.
Therefore, and although the forms of brutality and violence committed against girls and women during armed conflicts are in many respects unspeakable, we now have the strength of the law, the Rome Statute, to give voice and language to these crimes.
2) OTP STRATEGIES, POLICIES AND CASES
The Office of the Prosecutor, within its mandate prescribed by the Statute, is engaged on gender related issues in multiple ways. Article 54(1)(b) of the Statute specifically provides that the Prosecutor shall “take into account the nature of the crime in particular where it involves sexual violence, gender violence, or violence against children”. Sensitivity towards gender issues is all the more prescribed in relation to the protection of witnesses and victims. According to Article 68(1) of the Statute, “the Court…shall have regard to all relevant factors, including gender and the nature of the crime, in particular, where the crime involves sexual or gender violence or violence against children.”
Additionally, Article 42(9) of the Statute requires the Prosecutor to appoint advisers with legal expertise on specific sexual and gender violence. I am proud to have been the Office’s focal point for gender related issues since the start of my mandate as Deputy Prosecutor. The Office also established a unit, the Gender and Children Unit, comprised of advisers with legal and psycho‐social expertise to deal specifically with gender and children issues. The GCU advises the Prosecutor directly and provides support to the Office’s divisions, from pre‐analysis through to prosecution phases.
The OTP has also consistently endeavoured to ensure that its staff receives the proper training to integrate a “gendered” perspective into its investigations and prosecution, whilst at the same time presenting gendered aspects of conflict in connection with the contextual elements of the crimes as defined by the Rome Statute. Our investigators and lawyers receive specialised training on the legal framework and methods forconducting gender crime related interviews.
The OTP’s sensitivity toward gender aspect of crimes is well reflected in its investigation into cases regarding child soldiers. The OTP has brought charges of enlistment, conscription and the use of children to participate actively in hostilities against seven individuals and across four cases. The first trial before the Court against Thomas Lubanga Dyilo, was a landmark in the international criminal law history. With the verdict, enlistment and conscription of children under the age of 15, for the first time, was internationally criminalized. The case also had a very strong gender aspect, a subject I will further analyze in the latter parts of my speech.
Similar sensitivities were also taken into consideration in the Kony and Katanga/Ngudjolo cases. Our investigation into the situation in Uganda showed not only how the Lord’s Resistance Army systematically abducted girls for sexual enslavement and rape, but also how the LRA leader, Joseph Kony, controlled all aspects of how girls are abducted, distributed to LRA commanders, and enslaved. He allocated abducted girls as a reward to the commanders, to be used as sex slaves. Kony himself has had as many as fifty abducted girls in his household at one time‐‐girls who were enslaved and raped. The LRA attempted to mask their criminal acts by calling the enslaved girls “wives” or “sisters.” Today, such crimes are still continuing in Uganda.
Amid the civilians that were abducted from CAR, Sudan, and the DRC pursuant to orders by Joseph Kony to abduct one thousand new “recruits,” many women continue to be used as sexual and domestic slaves.
With respect to the case against Germain Katanga and Mathieu Ngudjolo Chui, theProsecution also presented charges related to gender crimes, namely, sexual slavery and rape, both as crimes against humanity and war crimes as well as using child soldiers as a war crime. Both men are charged with ordering the attack upon the village of Bogoro, in Ituri, on 24 February 2003. Hundreds of civilians were massacred during the attack, civilian’s residences were looted and destroyed, and women and girls were raped. According to the evidence collected, some women, who were captured at Bogoro and spared by hiding their ethnicity, were taken to FNI and FRPI camps, after being undressed or raped upon their capture. Once there, they were given as ʺwifesʺ to their captors or kept in the campʹs prison. The women detained in these prisons were repeatedly raped by soldiers and commanders alike.
The use of child soldiers was also included in the arrest warrant for Bosco Ntaganda, and as you may be aware, we recently applied for a new arrest warrant to include charges of rape, sexual slavery, murder, persecution, intentional attack against civilians and pillaging.
Our Office has taken very seriously the crimes committed against children in the context of armed conflict and in so doing we believe we are contributing to not only accountability for these crimes but also to the larger recognition of the legal rights of children, including the right to a childhood free from violence, coercion and fear.
Additionally, these cases involve gender related crimes of sexual slavery and rape, and crimes of enlisting and conscripting child soldiers. These experiences clearly illustrate that these two heinous crimes go hand in hand, especially when they involve female children.
3) OTP INTERACTION WITH FEMALE CHILD SOLDIERS
During the investigation which resulted in the arrest and trial of Thomas Lubanga Dyilo, the Office of the Prosecutor interacted with five female former child soldiers. At the time of interview, some of them were very fragile and emotional, whereas one was rather adamant not to be considered as a victim. All of them had physical health complaints – chronic and acute pains, urinary infections and experienced trouble sleeping. Out of five of them, two suffered from severe avoidance symptoms.
The Office of the Prosecutor is cognizant of the fact that the victims and witnesses it interacts with, especially those of sexual violence crimes and children, will in most cases be very fragile. During preparation for deployment to the field to conduct interviews of female child soldiers, the Office addresses issues in order to guarantee maintaining their dignity, physical and psychological well‐being.
It is the practice of the Office to obtain the consent of parents or care‐givers of children and that practice was respected before any interaction with the female child soldiers interviewed. Bearing in mind that they were children and because of the unfortunate experiences, the Office offered them support right from the initial stage of our interaction; they were entitled to attend interviews with an accompanying person of their choice.
To ensure that each child was in a fit condition to go through the interview process without re-traumatization, all five of them went through a psycho‐social pre‐interview assessment conducted by a psycho‐social expert. At the conclusion of the assessment, the expert made a determination of the child’s suitability to be interviewed. This determination was final and was respected by investigators. If approval is given for the interview to proceed, the expert either sits in the interview to provide support to investigators and/or the children or makes crises interventions if and when necessary.
During our interaction, certain fundamental principles, including respecting the principle of confidentiality and non‐exposure of the children, had to be thoroughly respected. As well as boys, girl child soldiers may have committed crimes during theperiod they were with the fighting forces, and the feeling of guilt causes reluctance in them to give a narration of their experiences. In our interaction, it is important to explain Article 26 of the Rome Statute and give them the assurance that they will not be prosecuted.
The Victims and Witnesses Unit in consultation with the Office of the Prosecutor, has developed both an Initial Response System and Secondary Response System which witnesses can trigger in case they feel threatened and are in need of protection.
In addition, the Court provides various forms of assistance to witnesses and a referral procedure has been set up between the VWU and the OTP whereby witnesses in need of assistance ‐ especially medical and psychological interventions ‐ are referred to VWU for provision of the assistance.
It is our strong belief that justice cannot be done in or out of the courtroom if the voices of female child soldiers are not heard.
Inside the courtroom, it is important for the gender component of conscription and enlisting to be mentioned in order to highlight the different dimensions of those crimes and their consequences, thereby participating in the determination of the whole truth.
We also have to focus on the planning, designing and implementing of prevention, demobilization and reintegration programs so that the unique needs of girls are taking into consideration from the inception. Their voices must be heard so that the international community understands their story and their plight as they look for ways to make a contribution, do something meaningful and productive with their life, and try to make up for the harm inflicted on them through any possible means of reparations.
4) THE LUBANGA CASE AS A LANDMARK
As previously stated, the Lubanga verdict was a landmark decision in relation to
gender crimes and child soldiers. During our opening statement in January 2009, we presented the gender dimensions of the crime of enlisting and conscripting children under the age of fifteen years. The evidence showed how Lubanga instrumentalised sexual violations to subject child soldiers of both sexes to his will, and made them tools to further his own violent goals.
In the camps, child soldiers were exposed to sexual violence perpetrated by Lubanga’s men. In the training camps, girl soldiers were the daily victims of rape by thecommanders. Girl soldiers, some aged twelve years old, were used as cooks and fighters, cleaners and spies, scouts, and sexual slaves.
One minute they would carry a gun; the next minute, they would serve meals to the commanders; the next minute, the commanders would rape them.
They were killed if they refused. One child soldier became severely traumatised after killing a girl who refused to have sex with a commander. Our evidence showed that as soon as the girls’ breasts started to grow, Lubanga’s commanders could select them as their forced “wives” and transform them into their sexual slaves. One of our witnesses described how he observed daily examples of his commanders raping girl soldiers.
Their right to a childhood, to safety and protection, to physical integrity, education, to exercising their reproductive rights and health and sexual autonomy, were denied and destroyed.
Although the Prosecution did not include specific charges related to sexual violence in the Lubanga case, it did make it a priority to lead and elicit evidence of sexual abuse and violence suffered by the female child soldiers within the UPC/FPLC military.
The Prosecution called a female child soldier who gave a graphic account of the prevalence of the gender based violence that existed in the UPC and recounted how she was also the subject of gender based harm.
As we demonstrated during the trial, rape and other forms of sexual violence were integral to the enlistment and conscription of girls by the UPC, and an ongoing component of the ways in which girls and young women were used to participate actively in hostilities.
Although gender crimes were not distinctly present in the final verdict rendered by the Judges, Judge Odio‐Benito provided a separate opinion, agreeing with the Prosecution that gender crimes were embedded in the recruiting of children and in their use in hostilities: “It becomes irrelevant, therefore, if the prosecution submitted the charges as separate crimes or rightfully included them as embedded in the crimes of which Mr Lubanga is accused. The harm suffered by victims is not only reserved for reparations proceedings but should be a fundamental aspect of the Chamber’s evaluation of the crimes committed”. Judge Odio‐Benito found that the invisibility of sexual violence in the legal concept leads to discrimination against the victims of recruitment.
It is our responsibility to present the gender crimes suffered by the most vulnerable.
During the course of the trial, the Office has made it its mission to ensure that Thomas Lubanga Dyilo be held criminally responsible for the atrocities committed against those little girl soldiers, when he enlisted and conscripted them to be used as sexual prey, while also using them in combat.
In the International Criminal Court, children, including girls, will not be invisible. It is our hope that the Lubanga ruling could change the life of these girls; never again should they be left out of the assistance provided by demobilization programmes. In this sense, the harm they suffered from has been remarkably mirrored in the submissions on reparations commanded by the Judges and introduced by various participants in the case, including the OPCV, ICTJ, UNICEF and Women’s Initiatives for Gender Justice.
In order to understand the effectiveness of the Court, one has to asses the impact it has over the world. Even before the verdict, the Lubanga trial has helped trigger debates on child recruitment in countries like Colombia or Sri Lanka, and child soldiers have been released in Nepal. The Special Representative of the UN Secretary‐General, Rhadika Coomaraswamy factored in such potential and used it as a tool to campaign around the world, and secure additional releases. This is an example of how to use the law to prevent crimes and change the lives of millions. The impact of the Lubanga case, as well as other cases before the Court, however, depends on the subsequent actions of a wide range of actors.
One last, but definitely not the least, point I want to make is about the effects of armed conflicts and international crimes over the education of children.
Sheikha Mozah of Qatar, UNESCO Special Envoy for Basic and Higher Education, clearly stated that the world cannot continue to ignore the impact that armed conflict and international crimes have on education. Staff at Qatar‐based Education Above All, an organisation which she chairs, analysed the information collected by the Prosecutor in the Lubanga case.
Their findings show how Thomas Lubanga Dyilo’s crimes interrupted, delayed and denied the right to education to Ituri children. In addition to the children abducted to become child soldiers, other children stopped going to school for fear of being abducted. Because of Mr. Lubanga Dyilo, these children lost out on their education.
And Ituri is just one example of the devastating effect that international crimes have on education: according to the Education for All Report published by UNESCO in 2011, 28 million children of primary school age in conflict‐affected poor countries are out of school. These children need to be included in the education system as education is the most effective way of reintegrating them back into their communities.
We have to reach out and help these children, the ones who are affected the most bythe vicious nature of armed conflicts.
As I have repeatedly said, the crimes committed towards female child soldiers need to be analyzed specifically. Our focus should shift from “children with arms” to “children who are affected by the arms” in the context of crime of enlisting and conscripting child soldiers. I, as the new Prosecutor of the ICC, will make sure that such crimes and victims will no longer be ignored and perpetrators will face justice.
FEMALE CHILD SOLDIERS
In recent decades, the international community has begun to recognize the horrendous crimes committed against children in armed conflict.
Unfortunately, A much greater deal of attention is paid to male child soldiers and one rarely speaks or highlights the plight of female child soldiers.
Few female child soldiers have appeared at the ICC. One reason is the time lapse between the end of the conflict and the commencement of the trial, by which time the girl has become a woman. In addition, few trials until very recently have involved violations against children. This is because international prosecutors are very reluctant to rely upon the evidence of children whom they consider to be less reliable witnesses than adults, and even more so if there is a long delay between the alleged crime and the actual trial.
WHAT WE DO
The Eng Aja Eze Foundation advocates for children who have suffered violations of their fundamental human rights and ensure that they can have access to justice and make their voices heard.
We tell children that they can have their voices heard in judicial and non-judicial forums. We work with them to manage their expectations and to assist them by giving evidence at the ICC and in national courts.
THE INTERNATIONAL CRIMINAL COURT
The ICC offers an alternative and innovative mechanism by which children who are victims of International Crimes can access justice. Instead of giving evidence as a witness in open court, the ICC permits the child to seek Victim Status instead.
There is a witness protection program in place that deals with the procedures for testimony given by “vulnerable witnesses.” The main objective of this program is to protect the psychological well being, dignity and privacy of witnesses, especially those who are at risk of psychological harm through the process of giving testimony.
The advantages for the child are :
– They are entitled to Legal Representatives.
– The children are not required to attend the proceedings;
– Victim Status allows for a larger number of children who have suffered harm to access justice and;
– The Victim and Witness Unit of the ICC provides support and protective measures to children granted victim status. Some of these protections include the holding of hearings in camera, the victim’s freedom to withhold their name, place of residence and any distinguishing features from the public and the press.
How effective is the International Criminal Court in protecting the victims?
Some issues for consideration include:
– Once the victim is in The Hague, to what extent is she protected? Is there is a chance she may see her perpetrator? If she does see her perpetrator she may become terrified and choose to withhold her testimony or refuse to speak.
– Once the trial has concluded, how is the victim further protected?
– Are female child soldiers sent back to their communities?
– In some cases a female victim is again stigmatized in her community when she chooses to testify in a trial in The Hague. She may feel pressured to remain away from her village. In such instances, and many others, can she pursue asylum in The Hague?
Female child soldiers also face fear of reprisals. When the perpetrators and victims live in the same community, they often suffer re-dramatization as a result of having to relive the events and undergo cross examination.
Another issue that recently arose should be addressed. In March of this year, during the trial of Thomas Lubanga Dyilo, the ICC noted that while witnesses testified to female sexual violence and rape, these crimes were not part of the charges against the accused. The Judges have left unresolved whether facts relating to sexual violence against girls should be taken into account for the purposes of sentencing and reparation. What does this mean for female victims in future trials?
TRUTH AND RECONCILIATION: A VALUABLE ALTERNATIVE?
Unfortunately, currently only a small portion of children who have suffered harm in armed conflict will actually come before the International Criminal Court in The Hague.
While the popular view is that non-judicial mechanisms can provide more accountability, enable community involvement, and provide reparations for the losses and damages that occurred, this is not often the case.
Once female child soldiers return home, they often encounter a great deal of prejudice within their communities because not only did they take up arms, but the sexual human rights violations perpetrated against them carry
a negative stigma.
Truth and Reconciliation Commissions are often flawed as they fail to address many needs of the child victims. This begs the question; do traditional judicial forums like the International Criminal Court provide greater relief to the victims?
The concept of reparations acknowledges the harm that victims have suffered and aims to return victims to their previous condition to the maximum extent possible.
Once a girl soldier’s childhood is stolen, it cannot again be retained solely through financial reparations.
Alternative reparation programs, including the establishment of a national holiday for the commemoration of the victims and the funding of rehabilitation centers, must be pursued.