Despite the evidence pointing to wide spread rape and other forms of sexual violence against in particular girl child soldiers, why was it that crimes of sexual violence were not taken into account in this case?
Patricia Viseur Sellers: Crimes of sexual violence were not charged. Such accusations were certainly within the purview of the Prosecutor. The Prosecutor could have brought charges related to sexual violence. Under the ICC Statute, enslavement, rape, torture, sexual slavery and inhuman acts are defined as crimes against humanity. In the Lubanga case, charges were brought under Article 8, war crimes, and as such could have included charges of torture, rape, sexual slavery or outrages upon personal dignity.
The Trial Chamber noted that they chose not to amend the charges. The Prosecutor could have amended the indictment at anytime prior to trial or even at a reasonable moment during the presentation of the prosecution case [to include charges for crimes of sexual violence]. The Prosecutor has suggested that to do so would have been detrimental to the due process rights of the accused. However, in the event of granting the Prosecutor’s move to amend, the Trial Chamber could have allowed the accused whatever time he needed to prepare his case in light of additional charges. That is a fairly standard procedure at other international tribunals.
The crucial question, in the absence of an amendment, is how much discretion is within the purview of the ICC Judges to address and re-characterise the evidence of sexual violence that came out as evidence under more suitable legal headings. Clearly, the issue of the rights of the accused to be aware of the charges against him or her and to be given all the safeguards to defend themselves is paramount. Also, it is uncertain that the judges can exercise that discretion to re-characterise the sexual violence evidence. In the judgment, the Trial Chamber cites Article 74(2) limitation that a “decision shall not exceed the facts and circumstances described in the charges and any amendments relating to the charges”. Interestingly, in its judgment, the Trial Chamber did invoke Regulation 55, relating to the authority of the Chamber to modify the legal characterisation of facts, to re-characterise the conflict from international to non-international. Judge Odio Benito, in her striking dissent, differed from the majority’ decision not to use the evidence of sexual violence as a means to define the legal elements of enlistment, conscription of children or use of children in hostilities as innate to their status as child soldiers. Judge Odio Benito’s reasoning related to the interpretation of the war crime charges at hand and, thus, was not conditioned upon the submission of further amended charges.
Nonetheless, today, the rendering of the first trial judgment at the ICC must be celebrated. We are still in the very early days of the ICC in terms of determining what is the legal authority of the Judges under the Rome Statue, the ICC Rules and Regulations. In the absence of the Prosecutor bringing specific amended charges or the re-characterisation of the evidence under existing charges, there remains the impression of a legal gap that spurred the dismissal or non-recognition of the probative value of sexual violence evidence. Re-characterisation, potentially, remains an open area of legal development. We must remember that the Lubanga decision is the first judgment and the judgment of one Trial Chamber.
Evidence or information certainly did come out during the trial concerning the widespread nature of the sexual violence that occurred when these children were conscripted and enlisted. To that extent the case highlights the sexual violence even though it has not been charged; it nonetheless offers an important advocacy tool about serious violations committed against children associated with armed conflict and the need for enforcement mechanisms.
At these early stages are there certain lessons that can already be drawn from this case?
Patricia Viseur Sellers: One lesson to be learned is that the Prosecutor must conduct and complete very good and thorough investigations. Given the evidence or information on sexual violence that came out in court, it appears to me that there was the potential for even greater probative evidence, had it been thoroughly investigated and included initially in the charges or even amended into the charges. So, this takes us back to the beginning, to the conception of the initial investigation and prosecution strategies. The development of gender and sexual violence strategies in a case must start at the beginning. Only then can the presentation of such evidence be competently given by victims, survivors, witnesses and by the experts and consciously deliberated upon by the Judges.
Patricia Viseur Sellers, an international criminal lawyer, is a Visiting Fellow at Kellogg College the University of Oxford. From 1994 until 2007 she was the Legal Advisor for Gender and a prosecutor at the International Criminal Tribunal for the former Yugoslavia (ICTY). She was the chief legal strategist in the landmark cases of Furundzija, Akayesu and Kunarac, that recognized rape and other forms of sexual violence as war crimes, as crimes against humanity, including enslavement and as genocide. In 2011, as an independent legal expert she testified before the Spanish investigating judge in the Guatemalan genocide case. She has been a Special Legal Consultant to the Gender and Women’s Rights Division of the United Nation’s High Commissioner for Human Rights and to the Secretary’s General’s Special Representative to Children in Armed Conflict. She advises civil society organizations and served as a story consultant to WNET-13/WIDE ANGLE, the producers of the PBS series, "Women, War and Peace". She is the author of several articles, the latest is, “Wartime Female Slavery: Enslavement?”, published in the Cornell Journal of International Law, Spring 2011.