The Collision Between Gender Bias Norms and Gender Justice Rules in the
Lubanga Trial at the International Criminal Court
Paper presented at: Workshop on Informal Institutions and Intractable
Problems
April 16-17, 2012
Purdue University | West Lafayette, Indiana USA
Professor Louise Chappell
Australian Research Council Future Fellow
School of Social Sciences
University of new South Wales,
Sydney, Australia
l.chappell@unsw.edu.au
Paper presented at:
* Work in progress. Please do not cite without author’s permission.
The International Criminal Court, which will celebrate its tenth anniversary in July 2012,
handed down its first verdict on 14 March 20121. The case involved Thomas Lubanga
Dyilo of the Democratic Republic of Congo who was charged with the crimes of
conscription, enlistment and use of child soldiers. Initially, it was considered a relatively
straightforward case, one that could be dealt with expeditiously. Almost 6 years to the
day since Lubanga was detained in the Hague, Trial Chamber I finally found Lubanga
guilty as charged. The discrepancy between predictions of a quick, straightforward trial,
and the reality – a three year trial which twice almost collapsed - reflects the challenges
inherent in implementing the rules of ICC contained in the Rome Statute (RS) and
associated documents2. The complications in the Lubanga case have emerged in the ‘soft
spots’ and ‘gaps’ between the codified rules and their implementation (Mahoney and
Thelen 2010, 10); specifically, they have arisen from a conflict between, and
interpretation of, the formal codified rules of the ICC on the one hand, and informal
rules, the existing norms of international law (IL), on the other. This collision has had a
particular character – it has been a clash between newly articulated formal rules
upholding principles of gender justice, and embedded gender biased norms of IL.
Despite the Rome Statute’s groundbreaking codification of rules to recognize and
prosecute gender based crimes, the Prosecution and judges in Lubanga, have frequently
forgotten or narrowly interpreted the new rules in favour of the old. The result has been
to obscure the experiences of women and girls and to distort and stymie gender justice.
This paper starts by outlining the growing literature on formal and informal rules and
institutions and discusses why gender should be incorporated into these analyses. It then
provides details of the formal rules of the ICC, with a focus on its gender justice
mandate, and a chronology of the Lubanga case. It then interrogates how the new formal
rules of the Rome Statute and older informal gender biased norms of IL have operated at
each phase of the case including the investigation and charging, the trial and the verdict.
The paper argues that the collision of the old informal and new formal rules in Lubanga
has led to a limited and narrow recognition of the harms experienced by women and girls
involved in the DRC conflict. Despite these negative findings, it also suggests that the
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The judges are still to hand down a sentence and make a ruling on reparations while Lubanga is still to
announce whether he will appeal the decision or not.
2 The most relevant here are the Rome Statute and associated documents including the Rules of Procedure
and Evidence, Elements of Crime and Regulations for the Court.
2
legacy of Lubanga may also yield some positive outcomes: the case may encourage
internal and external actors at the ICC to be more conscious of gender injustice and
work to instantiate the formal gender justice rules in order to tackle the operation of
gender bias in IL.
Formal and Informal Rules and Gender3
New Institutionalism has shown that the ‘rules of the game’ are crucial to structuring
political life in terms of constraining and enabling political actors and influencing
political outcomes. A limitation of this approach however has been its overemphasis on
how the formal rules operate, with much less attention paid to how informal rules work
alongside and in conjunction with formal institutions to shape actors and outcomes.
Mackay et al (2010:576) are correct in pointing out that ‘both the specific influence of
informal institutions and the interplay between formal and informal institutions are often
under-theorized and underplayed in empirical studies’ in both gendered and nongendered institutionalist analysis in political science. New work is emerging to address
this gap (Helmke and Levitsky 2004; Mahoney and Thelen 2010; Levitsky and Slater
2011; Radnitz 2011; Azari and Smith 2012), but one obvious lacuna remains, that is, any
understanding of institutions as gendered and how this impacts on their design,
evolution and outcomes. Indeed although NI, and especially its historical variant may
have been attuned to the ways in which institutions distribute power unevenly between
groups (Hall and Tayor 1996:941), no attention has been given to the gender dimension
of this.
For all New Institutionalists (NIs), formal institutions are distinguished by codified rules
(Lauth, 2000:24) that are ‘consciously designed and clearly specified’ (Lowndes
2005:292). Formal institutions can vary in their form, from constitutions, statutes and
bylaws, to individual contracts and operational guidelines (North 1990:47). Formal
institutions are often also delineated by the nature of their enforcement. Formal rules
require methods to identify that a rule has been broken, ways to measure of the extent
of the rule violation and mechanisms for punishing the violator (North 1990:48). Formal
institutions involve rules and procedures that are ‘created, communicated, and enforced
through channels widely accepted as official’ (Helmke and Levitsky, 2004:727). It is this
official enforcement, undertaken by a third party, which give an institution its legitimacy
3
This section draws heavily on Chappell and Waylen 2012.
3
(Streek and Thelen 2005:10-11).
Defining informal institutions is more difficult. As Helmke and Levitsky note, the
problem with this term is that it is treated as a residual category, and applied to ‘virtually
any behaviour that depart from…the written-down rules’ (2004:727). Leading the field in
comparative politics, Helmke and Levitsky (2004, 2006) have provided a definition of
informal institutions which is particularly useful to political scientists. They suggest that
informal institutions are ‘socially shared rules, usually unwritten, that are created,
communicated, and enforced outside of officially sanctioned channels’ (727). Following
on from them, Azari and Smith (2012, 39)suggest that informal institutions exist ‘when
shared expectations outside the official rules of the game structure political behaviour’.
They go on to suggest that when behaviour has no pattern, or when there is no socially
sharded understanding of the right behaviour in a given setting, the behavious cannot be
described as an institution (2012, 39).
These definitions bring a greater degree of precision to our understanding of what an
informal institution is, but it does not necessarily make it any easier to trace them.
Informal institutions, as Lauth (2000:26) suggests, ‘shy away from publicity’. By their very
nature, they are hidden and embedded in the everyday practices that are disguised as
standard, and taken-for-granted. Identifying the enforcement of informal institutions is
also a challenge. Whereas the enforcement processes of formal institutions are relatively
easily identified because they involve obvious actors such as police, courts, tribunals, and
committees, sanctions for violating informal institutions take place through often ‘subtle,
hidden, and even illegal channels’ (Helmke and Levitsky 2004:733). Indeed Helmke and
Levitsky (2006) argue that sanctions or enforcement measures may not even be evoked
allowing some informal institutions to remain invisible. These features make informal
institutions not only hard to identify but also particularly ‘sticky’ and resistant to change.
For Helmke and Levitsky, informal institutions emerge in relation to formal rules and
operate in constant interaction alongside them. Informal institutions arise for a number
of reasons: because formal institutions are incomplete; it is too difficult to change formal
institutions so the informal becomes ‘a second best strategy’; or to allow actors to pursue
goals not publicly acceptable including unpopular or illegal activities (2004:730). The
informal can work to ‘weaken, substitute for, or work in parallel with’, the formal
4
institutions of the state (Radnitz 2011:352). Azari and Smith, who are attempting to
make sense of informal institutions in advanced democratic settings suggest informal
rules act to complete or fill gaps in informal institutions, operate parallel to the formal or
co-ordinate intersecting institutions (2012, 41). Informal institutions can distort formal
institutions as well as stymie them (Levitsky and Slater 2011, 6). The interaction between
formal and informal institutions leads to 'myriad, complex and often unexpected effects:
whereas some informal rules compete with and subvert democratic institutions, others
complement and even help sustain them' (Helemke and Levistky 2006:3). It is the job of
researchers to discover these effects and to understand how the informal works together
with the informal to influence institutional outcomes.
To date discussions on informal institutions have ignored the way the rules of the game
– both formal and informal– are gendered and that this gendering prescribes (as well as
proscribe) ‘acceptable’ masculine and feminine forms of behaviour, rules and values for
men and women within institutions (Chappell 2002, 2006). Political and legal institutions
are structured by gendered assumptions and ‘dispositions’ (Annesley and Gains 2010;
Weldon 2002) and produce outcomes including polices, legislation and rulings that are
influenced by gender norms. In turn, these outcomes help to re/produce broader social
and political gender expectations. While constructions of masculinity and femininity are
both present in political institutions, the masculine ideal underpins institutional
structures, practices, and norms, shaping ‘ways of valuing things, ways of behaving, and
ways of being’ (Duerst-Lahti and Kelly 1995, 20), as well as constraining the expression
and articulation of marginalised perspectives. With a few exceptions, women are most
commonly associated with feminine traits, and are thereby disadvantaged in the power
play over which ideas matter and who accumulates institutional resources.
While gender norms may work with or against formal institutions to entrench gender
inequalities, they can also potentially destabilise male bias (Banazsak and Weldon 2011).
This ‘regendering’ (Beckwith 2005) process may offer new political possibilities for those
disadvantaged by earlier institutional arrangements. For instance, recent work on
strategies to address violence against women shows that norms can be created, in this
case around state obligation to address this issue, and harnessed to advance a gender
equality agenda (Franceschet 2011:67; Weldon 2002).
5
As Lowndes and Roberts suggest (forthcoming) there are many dimensions to the
gendered nature of rules. First, there are identifiable rules about gender – these may be
formal or informal and they shape how male and female actors behave. Rules – whether
formal or informal also have gendered effects – largely because of their interaction with
other rule sets. For instance, seemingly 'neutral' formal rules about the timing of
meetings have gendered effects because of informal rules about women's caring
responsibilities. And the actors who work with rules – whether as rule-makers, breakers
and shapers - are also gendered. They embody various constructions of masculinity and
femininity that impact on the ways in which they create, interpret, communicate, enforce,
shape and comply with rules (Lowndes and Roberts forthcoming).
The following discussion highlights to a greater or lesser extent each of these
dimensions. It discusses new rules about gender, the gender justice principles of the
Rome Statute and ongoing existing gender biases in International Law. It also
demonstrates the both formal and informal rules at the ICC have gender effects. Finally
it demonstrates the way gender justice advocates, especially the Women’s Initiatives for
Gender Justice, feminist judges and other officials have worked with rules in an effort to
recast the gender logic of appropriateness in international law.
The ICC’s Formal Rules and Gender Justice Mandate
The ICC’s foundation document, the Rome Statute (RS), has many innovative features.
Although the categories of crimes over which the ICC has jurisdiction - genocide, war
crimes and crimes against humanity - are not in themselves new, the RS extends these in
various ways, including in the articulation of the gender aspects of these crimes. The
drafters of the Rome Statute were influenced both by the jurisprudence of the UN ad
hoc tribunals for Rwanda (ICTR) and the former Yugoslavia (ICTY) – which had
recognized rape as a form of genocide in the Rwandan Akayesu case and as constituting a
war crime (see Mackinnon, 2006) – as well as the strong advocacy of gender justice
proponents at the preparatory committees for the Statute and at the Rome Conference
(Facio, 2004: 324). As a result of these intense lobbying efforts (Chappell 2006), the
Statute codifies a range of gender-based crimes as crimes against humanity and war
crimes and thus constituting grave breaches of international law. Included under the
category of Crimes against humanity are:
Rape, sexual slavery, enforced prostitution, forced pregnancy,
6
enforced sterilization, or any other form of sexual violence of comparable gravity
(Article 7 (g).4
Similar crimes are enumerated as war crimes (see Article 8 (b) (xxii)). Women’s rights
activists also advocated successfully to have the term gender defined for the first time in
an international treaty and to have it included it in Article 7 (h) as a ground for
persecution (alongside political, racial, religious and other such categories)5. Further,
Article 21, prohibiting discrimination based on gender in the application and
interpretation of the Statute reflected an attempt to integrate gender concerns more
broadly within the operations of the ICC. Another innovative feature of the Rome
Statute, is its provisions for victim access to proceedings and specific protection
measures for those suffering gender-based violence, including for witnesses and victims.
A concern for gender justice is also ‘mainstreamed’ in other parts of the Statute. Of
relevance to this discussion is Article 54(1)(b), which charges the ICC Prosecutor with a
duty to investigate crimes of sexual and gender violence. Investigations into gender-based
crimes should be carried out with genuine gender awareness of how to direct, plan and
conduct investigations into such crimes (Mouthaan 2011). These provisions assert that at
the investigative and trial stages the Prosecutor must “respect the interests and personal
circumstances of the victims and witnesses, including gender (…) and to take into
account the nature of the crime, in particular where it involves sexual violence, gender
violence or violence against children”.
These new formal rules stand in contrast to the longstanding norms of international
humanitarian and criminal law where women have been incorporated primarily as victims
of armed conflict and as mothers, but not as independent actors. Women have not been
entitled to the same protection afforded to men in similar circumstances, nor has the law
taken into account their unique and varied experiences of and participation in armed
conflict (see Mouthann, 2011), including sexual and gender-based crimes. Very often the
law has remained silent on these crimes, leaving women completely invisible in legal
proceedings. Where the law has addressed those crimes commonly experienced by
Gender based crimes were not included under Article 6 on Genocide, with some of
the more optimistic gender justice advocates reasoning that it was unnecessary,
having already been established as an element of that category of crime in the
jurisprudence of the ad hoc tribunals.
5
7
women, especially those of a sexually violent nature, they have been treated as lesser
crimes to those usually suffered by men. For instance, traditionally, international laws on
rape treated it as a crime of honour, not a grave breach of law: these laws have not been
about protecting individual women from an act of violence but about protecting men
from insults inflicted on dependent women by other men (see Gardam and Jarvis, 2001;
Mouthaan 2011).
The codification of crimes of sexual violence in the Rome Statute makes an important
break with the past. However, as Mahoney and Thelen’s suggest, ‘even when institutions
are formally codified, their guiding expectations often remain ambiguous and always
subject to interpretation, debate and contestation’ (2010, 11). This is in part because
those who write the rules don’t get to enforce them (Levitsky and Slater, 17). This
ambiguity has indeed been the initial experience at the ICC. For those attempting to
realize the full potential of new rules on gender justice, the process has involved
contestation with those working with conflicting, older informal rules. These informal
rules work to uphold the ‘gendered logic of appropriateness’ of IL. As the following
discussion on the Lubanga case demonstrates, these informal rules often work in subtle
ways, and although are often not consciously recognized, are nevertheless powerful in
shaping gender outcomes.
The Prosecutor vs. Thomas Lubanga Dyilo
Thomas Lubanga was arrested in 2006 after two years of investigation by the ICC
Prosecutor, Luis Moreno Ocampo into crimes committed in the conflict in the Ituri
region of the Democratic Republic of Congo (DRC). Lubanga was identified as a senior
figure in the DRC conflict, having been the President of the Union des patriotes congolais
(UPC), and commander-in-chief of the Forces patriotiques pour la libération du Congo (FPLC).
The Prosecutor indicted Lubanga for war crimes relating to the enlistment and
conscription of children under the age of 15 years and using children to participate
actively in hostilities.
In January 2007 the Pre-Trial Chamber6 found there were reasonable grounds to believe
The Pre-Trial Chamber is another innovation in the Rome Statute. It authorizes the Prosecutor to
undertake an investigation under his own powers. It also issues warrants for arrest and confirms the
charges on which the Prosecutor intends to go to trial. Judges must assess whether there are substantial
grounds to believe the person committed the crimes. Judges can recharacterize the crimes in light of the
6
8
that Lubanga had committed these crimes and confirmed the charges. The proceedings
then moved to the Trial Chamber. The trial was due to commence in June 2008 but was
halted when judges found the prosecutor had withheld potentially exculpatory evidence
from the defence. As a result of this decision, the Trial Chamber granted Lubanga’s
unconditional release in July 2008; before he was able to leave detention, this decision
was challenged and overturned by the Appeals Chamber in October 2008. The case
eventually commenced in January 2009 after the OTP handed over the evidence to the
defence. The trial stalled again in May 2009 when lawyers for victims in the case filed an
application claiming existing evidence warranted the additional charges of sexual slavery
and cruel and inhuman treatment. In July, the Trial Chamber upheld the application, but
the defence appealed the matter and the Appeals Chamber overturned it in December
2009. The trial resumed in January 2010 but another stay of proceedings was ordered
seven months later after the prosecution refused to disclose the identity of an
intermediary it used to contact witnesses. The Appeals Chamber again overruled the
Trial Chamber and proceedings recommenced in October 2010. Closing statements
from prosecution and defence counsel were presented in August 2011 and the verdict,
which found Lubanga guilty on all counts, was handed down in March 2012. The case
still has some way to run. The accused has the right to appeal the decision while the Trial
Chamber is still to hand down its sentence. It also needs to deal with the question of
reparations for victims, in line with the unique restorative justice aspects of the Rome
Statute.
This brief account of the proceedings provides clues to the length of this first ICC trial.
The Lubanga case demonstrated that despite formal codification of the rules – and a
much greater degree of legal certainty and specificity than other international criminal law
venues (Stahn 2005, 12) - many matters remain unsettled and open to challenge at the
ICC. In this environment, where the formal rules have not been fully instantiated and
are to some extent incomplete, it is not surprising to find informal rules at work (Helmke
and Levitsky 2004). As the following discussion demonstrates, informal rules have
indeed been evident in the Lubanga case. Here informal rules have competed and
combined with and challenged formal ones at each of the three phases of the case and
mostly in ways that have distorted or blocked gender just outcomes.
evidence presented. They did so in the Lubanga case to include provisions to cover the crimes occurring in
an international and not only an internal conflict (Schabas 2011, Chapter 7).
9
Phase 1: Investigation and Charges
The first sign in the Lubanga case of a collision between the new codified rules and
existing IL norms came in 2006 with the Prosecutor’s failure to include any crimes of
sexual violence in the application for an arrest warrant. The Prosecutor in drawing up the
indictment failed to recognize the publically available documentation gathered by his
office, the Secretary General of the UN and many NGOs over the years showing that
large-scale patterns of rape and other forms of sexual violence were a feature of the
conflict in which Lubanga’s militia was involved (Ocampo 2004; Annan 2004; HRW
2002; Amnesty International 2003; Redress 2006). The key women’s rights advocates at
the Court, the Women’s Initiatives for Gender Justice (WIGJ) had undertaken its own
investigations alongside the Office of the Prosectuor (OTP). It interviewed 31
victim/survivors and were able to show that ‘rape and other crimes of sexual violence
have been a defining characteristic of the conflict in Ituri and that the UPC, among other
groups has committed these crimes’ (WIGJ, 2008a, 22). According to former OTP staff,
ICC investigators had also initially begun to gather evidence on crimes including rape
and enslavement. Yet ‘one day, without explanation, prosecutors told the team to drop a
year and a half of investigative work and focus solely on the use of child soldiers.’
(Glassborow 2008). At the time the Prosecutor justified the absence of these crimes in
the investigation and charges as the result of needing to expedite the proceedings. In his
words:
I knew to arrest Lubanga I had to move my case fast. So I had strong evidence
about child soldiers. I was not ready to prove the connection between the killings
and the rapes. And then I decided to move just with the case I had proofs
(sic)(Yates 2009).
The need to move quickly to arrest Lubanga, who had been held in detention in the
DRC and was reportedly soon to be released (Schabas 2011, 278) may have been a
reasonable justification for not including sexual crimes at the start of proceedings, but
did not excuse later inaction. The formal rules of the ICC, (Rome Statute, Article 61)
allows the Prosecutor to continue to conduct investigations before the Pre-Trial
Chamber hearing to confirm the charges and to amend the charges. Further, under
Article 61,(9) after the charges have been confirmed and before the commencement of
the trial, the Prosecutor is able to add to the charges. In other words, the Prosecutor had
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3 years - from the time of Lubanga’s arrest in January 2006 and the start of the trial in
January 2009 - to investigate these crimes and amend the charges.
The Prosecutor declined to use these provisions, but he was not ignorant about extensive
evidence of sexual violence in the conflict. WIGJ twice attempted to work within the
formal rules to push the Prosecutor to amend the charges to include crimes of sexual
violence. On the first occasion, in August 2006, the WIGJ sent a dossier to the OTP
which ‘indicated that sexual violence appeared to be an integral component of the attacks
against the civilian population, provided material suggesting a pattern of rape, abduction,
sexual slavery and torture by the UPC, and confirmed that women victims/survivors
were willing to be interviewed by the ICC’ (Inder 2011). The OTP did not respond to
this intervention. Then, in September 2006, the WIGJ became the first NGO to file
before the ICC when it requested Pre-Trial Chamber I use its powers under Artcle 61 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’. Its filing 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
recognized by the Court and to participate in the justice process (WIGJ 2006). The PreTrial Chamber declined the WIJG’s request and took no steps to amend the charges to
include sexual crimes. Notwithstanding these developments, the Prosecutor and Senior
Trial Attorney remained completely silent on the issue of sexual violence at the
confirmation of hearing (see Ocampo 2006; Withopf 2006).
During the investigation and charging phase of the case, pre-existing norms of IL
reasserted themselves. Indeed it can be argued that they trumped new, formal gender
justice rules. Rome Statute provisions which charge the Prosecutor with the duty of
investigating crimes of sexual violence and which provide by the prosecutor and Pre-trial
Chamber with the means to correct mistakes in the initial charging strategy and amend
charges were by-passed, despite extensive evidence of sexual violence against women and
girls. In their place a number of existing norms of IL came in to play. These included a
lack of attention on crimes directed against women in the investigation, and an
underlying perception, evident in the Prosecutors remarks, that gathering evidence for
rape is more difficult than for other crimes (see Gazurek and Saris, 2002; MacKinnon
2006). By ignoring the seriousness of the crimes committed against women and girls in
11
this conflict and failing to identify a strategy through which these crimes could be
prosecuted, the OTP and the Pre-Trial Chamber reinforced women’s invisibility under
IL in general and ‘eras[ed] the distinctively female face of the devastating war in the
DRC’ (Merope 2011, 323)
Phase 2: The Trial
The effect of the decision made by the OTP and Pre-trial Chamber not to pursue crimes
of sexual violence at the investigation and charging stages reverberated throughout trial
phase. Although absent from the charges, very early in the hearings prosecution and
defence witnesses began to provide evidence about the different treatment of boy and
girl soldiers in the DRC conflict, and the explicit sexual and gender-based nature of these
experiences. The WIGJ’s summarized the testimony in the following terms:
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 (Inder 2011).
As the trial progressed it became evident through victim and witness testimony that the
specific crime of sexual enslavement of girl soldiers was a feature of Lubanga’s case (ICC01/04-01/06-1891-tENG; International Bar Association, 2009). Testimony also
indicated that the UPC, of which Lubanga was a commander, was involved in training
boys to commit rape and other sexual crimes.
Surprisingly, given the OTPs resistance to including these crimes in its indictment, its
case at trial came to rest heavily on the experience of girl soldiers including acts of rape
and sexual slavery. Fifteen of the 25 witnesses, most of whom were for the Prosecution,
who testified in the first year of the trial mentioned girl soldiers experiences of sexual
violence (Inder 2011). The United Nations Special Representative for Children and
Armed Conflict, Radhika Coomaraswamy, also testified for the prosecution as an expert
12
witness on the sexual elements of child soldier experiences. This shift in approach was a
response to the outcry of NGOs and others to the failure to include these charges (see
for example Human Rights Watch 2006) including the WIGJ’s efforts to have the OTP
expand the charges. As Deputy Prosecutor, Fatou Bensouda, has stated in relation to the
Lubanga trial: ‘We took note of the reactions of civil society and their preference for these
aspects to be explicitly charged’ (2012). By the end of the trial, the Prosecutor’s failure to
include crimes of sexual violence had be cast by the OTP as a deliberate strategy – an
effort to have the Chamber recognize such acts as embedded within the crimes of
conscription and use of child soldiers (see ICC-01/04-01/06-2748-Red).
The Prosecutor’s inclusion of testimony about the experiences of girl soldiers throughout
the trial had two obvious effects. First, and positively in terms of challenging the gender
bias of IL, it opened up a space for victims to articulate in an international law venue the
link between gender based crimes, and sexual slavery in particular, and child soldiers. In
this case, victims were able to exploit the formal rules of the Rome Statute, which give
them standing at the ICC (in Articles 15,19 and 82), to outline their experiences and to
challenge traditional notions of child soldiers that have drawn almost exclusively on the
experience of boys. As Coomawarmy’s evidence indicated, the role of child soldiers as
combatants, scouts, body guards and messengers has been well recognized, but the
recruitment and use of child soldiers in other non-combatant roles, especially for sexual
purposes and wives has not (ICC-01/04-01/06-1229-AnxA). It also created an
opportunity to provide more nuance about the experience of boys, especially their
involvement in and experience of sexual violence. In particular, victim testimony, and
that of Coomaswarmy highlighted the ‘multiple intersecting roles’ of girl soldiers
including acting as combatants and sex slaves ‘that makes categorically separating sexual
slavery from other forms of active participation impossible’ (in Merope 2011, 342; ;
WIGJ 2010).
The second effect of the Prosecution’s decision to introduce crimes of sexual violence
post hoc (as opposed to at the confirmation stage) was less positive, complicating and
extending the proceedings unnecessarily. For a start, the approach left the ICC judges
very little room to move to address sexual violence. Whereas in the ICTR and ICTY,
judges had the right to amend charges based on the evidence, this is not the case under
the Rome Statute. In a deliberate effort to distance the ICC from the tribunals, the
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Statute’s designers did not allow charges to be added at the trail stage. This decision was
an attempt to better protect defendant rights to a fair trial and to ‘enhance the efficiency
of proceedings through the encouragement of a precise charging practice from the very
beginning of the proceedings’ (Stahn 2005, 31). Instead of being able to amend charges,
under Regulation 55 of the Court, and in line with the Civil Law tradition, the Trial
Chamber is provided with a more limited option: to recharacterize the legal facts of the case
(ICC-BD/01-01-04 Regulation 55; Schabas 2011, 321). This is a more restrictive
approach that does not allow a formal amendment of the charges. In May 2009 the Legal
Representatives for Victims (LRFV) sought to use this regulation requesting the Trial
Chamber recharacterize the facts to incorporate the crimes of inhuman and cruel
treatment and sexual slavery (ICC-01/04-01/06-1891-tENG).
The LRFV submission on a recharacterization prompted extensive litigation on
Regulation 55. In July 2009 a majority of judges in Trial Chamber I supported the filing
(with Judge Fulford dissenting), opening the possibility of the formal recognition of
sexual slavery as a part of the proceedings. This ruling was appealed by both the defence
and prosecution and, in December 2009, was overturned by the Appeal Chamber. The
Appeal Chamber’s decision focused on procedural issues about the application of
Regulation 55. It did not rule on the substantive matter about whether in this case the
facts could be recharacterised to include these crimes; this matter was left to the Trial
Chamber. When the trial recommenced in January 2010, the LRFV again sought
clarification from the Trial Chamber on the issue of recharacterising the charges to
include, inter alia, sexual slavery. The trial chamber denied their application arguing it
would be wrong to consider the matter given ‘Factual allegations potentially supporting
sexual slavery are simply not referred to at any stage in the Decision on the Confirmation
of Charges’ (ICC-01/04-01/06-2223). Here the Trial Chamber was responding to the
narrow interpretation of the Appeals Chamber on Regulation 55 and making clear that it
was restricted by the Prosecutor’s decision not to include charges of sexual slavery
against Lubanga.
Soon after this decision, the defence tried to further limit the scope of proceedings by
challenging the Trial Chamber on the appropriateness of questioning of witnesses and
victims. It specifically challenged Judge Odio Benito’s questioning of prosecution
witnesses on issues related to sexual violence which they saw as ‘demonstrating the
14
Judge’s own opinion’ (see discussion WIGJ 2010, 132). The Chamber rejected the
challenge but nevertheless, together the litigation on the recharecterisation of charges
and on judicial questioning had a ‘chilling’ effect on the pursuit of gender justice in the
trial. According to the WIGJ, after litigation on these two matters, ‘Trial Chamber I
subsequently appeared to take a more restrictive approach to hearing questions on
gender-based crimes posed by the Prosecution’ (2010, 132). This was reflected in April
2010 when Judge Fulford responded to prosecution questioning of a witness about acts
of rape by stating:
the Prosecution made a choice with the charges that were brought against
this accused, which do not include allegations against him that he is responsible
in some way criminally for the suggestion that young women were raped by UPC
soldiers. At the very least, for reasons of trial economy, you will please move on
to another subject (see WIGJ 2010, 134).
At the end of the trial, the OTP attempted to provide a coherent justification for its
approach to the charges. Although it did not directly confront the question of charging
of gender based crimes, it did make clear in its closing statement that it wanted the
Chamber to interpret ‘active participation’ of child soldiers broadly so as to include the
recruitment of girls for sexual purposes and forced marriage (see ICC-01/04-01/062748-Red para. 139). It encouraged the judges to be mindful of this characterization in
making decisions at the sentencing and reparations stages of the trial. That is, it argued
This post hoc justification did not seem to sit well with the judges who in a tense
exchange with the Ocampo in the final hearing quizzed him about the prosecution’s
position on sexual violence. The Prosecutor responded by suggesting that it was
deliberate strategy on the part of the OTP not to include specific gender crimes but to
present them differently; that is, to show that gender crimes were committed as part of
the conscription of girls, not as a separate crime (WIGJ 2012 208).
As the above account shows, the decision of the Prosecution not to include sexual
violence in the charges strongly influenced the direction of the trial. In an attempt to
make up for the deficiency, the OTP introduced testimony of and about women and girls
who had experienced sexual violence at the hands of Lubanga’s militia into the
proceedings. In this way, the new formal rules of victim participation worked to
challenge old informal gender norms that have excluded their voices. However, the
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judges, working within the formal rules, were restrained in how they could use this
evidence. As discussed, the Rome Statute disallows the chambers to amend charges
during a trial. Yet as the experience at the ICTR and ICTY has demonstrated, sex crimes
often only emerge during the trial stage – in part because prosecutors have traditionally
failed to look for these crimes in their investigations (Merope 2011, 321) and because of
the shame and stigma attached to these acts. Whereas at the ICTR, Judge Pillay was able
to amend the charges in the Akayesu case to include gender as a basis for genocide, no
such move was possible in the Lubanga trial, even when there were signs that at least one
justice – Odio Benito - was particularly interested in exploring these crimes. Moreover,
where the Appeals Chamber did have some scope to interpret rechacterization broadly,
to take account of the evidence of sexual violence, it chose not to. This could have
ongoing implications for the work of the Court. As Merope has argued:
If the narrow application of Regulation 55 ultimately applied by the Trial
Chamber in Lubanga is followed in future cases, it will leave the Trial Chamber
unable to hold the accused legally accountable in …circumstances [where sexual
violence emerges during the trial]. This would be a deeply unsatisfactory result
for gender justice at the ICC (2011, 322).
These outcomes suggest formal and informal rules can combine, compete and collide in
ways that produce different effects. The formal rules (on victim standing) successfully
competed with informal ones (on the exclusion of women and girls from proceedings) to
open space for testimony on the gendered nature of child soldiering. At the same time,
the initial gender blindness in the OTPs charging strategy, reflecting longstanding IL
norms, combined with a restrictive reading of rules on the recharacterisation of the case
to mute the impact of victims testimony, and only allow a partial account of their
experiences. The OTPs decision to air evidence of sexual violence at trial is inadequate to
counter the silencing effect of IL (Merope 2011, 324; Sellers 2012). Rather, as Merope
points out, ‘such an approach replicates the common historical position whereby gender
based crimes are made simply a facet of other (male) violations (Merope 2011, 324).
Phase 3: The Verdict
With much anticipation, Trial Chamber I handed down its verdict on Lubanga on 14
March 2012. The judges were unanimous in their decision in finding the accused guilty
on all three counts – conscripting, enlisting and using child soldiers in the Ituri conflict
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(ICC-01/04-01/06-T-359-ENG). In its judgment, the judges were very critical of the
OTP, including for its lack of adequate scrutiny of witnesses and ‘negligence in failing to
verify and scrutinise [witness] material sufficiently before it was introduced [which] led to
significant expenditure on the part of the Court’ (Paragraph 18, ICC-01/04-01/06-T359-ENG). Not surprisingly, given the direction of the trial to limit discussion of sexual
violence in the latter stages of the trial, the issue received minimal attention in the
decision. The judges found, inter alia:
The evidence demonstrates that children in the military camps endured harsh
training regimes and were subjected to a variety of severe punishments. The
evidence also establishes that children, mainly girls, were used by UPC/FPLC
commanders to carry out domestic work. The Trial Chamber heard evidence
from witnesses that girl soldiers were subjected to sexual violence and rape.
Witnesses specifically referred to girls under the age of 15 who were subjected to
sexual violence by UPC/FPLC commanders. Sexual violence does not form part of the
charges against the accused and the Chamber has not made any findings of fact on the issue,
particularly as to whether responsibility is to be attributed to the accused (Emphasis added,
Paragraph29, ICC-01/04-01/06-T-359-ENG).
While not surprised, gender justice advocates watching the trial were disappointed that
the Chamber did not take the opportunity to use the evidence on sexual violence that
emerged at the trial to advance jurisprudence on the issue (WIGJ 2012).
However, these advocates were given some hope when in a separate and dissenting
opinion Judge Odio Benito provided an alternative, gender inclusive, reasoning for the
guilty verdict. In line with the position of the prosecution in its closing statements, Odio
Benito found that sexual violence was integral to each of the three crimes for which Mr
Lubanga has been convicted. In her view ‘Sexual violence is an intrinsic element of the
criminal conduct of “use to participate actively in the hostilities”. Girls who are used as
sex slaves or “wives” of commanders or other members of the armed group provide
essential support to the armed groups’. She went on to argue: ‘it is discriminatory to
exclude sexual violence which shows a clear gender differential impact from being a
bodyguard or porter which is mainly a task given to young boys. The use of young girls
and boys bodies by combatants within or outside the group is a war crime and as such
encoded in the charges against the accused’ (Para 21). In making these statements Odio
Benito was conscious of wanting to make visible aspects of the crimes experienced by
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girls that were not otherwise acknowledged (see ICC-01/04-01/06-2842 paragraph 16).
In this judgement, Odio Benito did not dismiss the importance of also charging specific
gender based crimes. But where this option was not available, it was possible and
important to consider the integral gender element of the crimes. In, this sense, Odio
Benito’s judgement could be considered a clever strategic move. The day after this
statement, the Deputy Prosecutor and Prosecutor Elect, Fatou Bensouda, who has
already made clear her commitment to addressing gender justice in her forthcoming nine
year term as Prosecutor (Bensouda 2012, 5-6) stated her clear support for Odio Benitos
judgment (Prosecutor and Prosecutor Elect 2012).
The verdict phase again indicated a competition between informal gender bias rules and
formal gender justice ones. The fact that the ICC allows for differing interpretations of
the formal rules amongst the judges themselves has amplified this competition. Working
with new rules – and ones that span differing legal traditions – it is not surprising that
ICC judges might disagree in their interpretation of the rules. What is interesting in the
Lubagna case is that issues of gender justice were at the heart of this disagreement.
Whereas the majority of judges (Fulford and Blatmann) read their scope narrowly, and
construed the rules safely within the bounds of the gender status quo, Odio Benito,
expressing feminist sensibilities, took a strikingly different approach. This judge
demonstrated an alternative interpretation; one that could conceivably expand the
purview of international law to take better account of the harms suffered by victims of
sexual violence in situations relating to the conscription and use of child soldiers.
Future developments
Two critical steps remain in the Lubanga case. The first is the sentencing phase. The
majority judges did leave open the option of considering sexual violence in the context of
deciding Lubanga’s sentence (see WIGJ 2012). It is yet to be seen whether Odio Benito’s
reading of sexual violence as constituting an element of the crimes of which Lubanga is
accused will influence the Trial Chamber’s sentencing decision. Given the trajectory of
this trial, it will not be surprising to see the majority Trial Chamber interpret the rules
narrowly and resist finding a route around the Prosecutor’s original inaction of crimes of
sexual violence. If this latter scenario comes to pass, it will be a lost opportunity to make
a dent in the IL norm that has treated crimes of sexual violence as less important than
others.
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The second, and perhaps more critical step as far as victims of sexual violence are
concerned, relates to the Chamber’s forthcoming ruling on reparations. The Rome
Statute sets out a dual purpose for the ICC: establishing guilt or innocence of the accused
and recognizing harm suffered by victims. Reparations measures are one important way
the Statute seeks to recognize the latter. The catch for girl soldiers experiencing sexual
violence in Lubanga is that in order to be eligible for reparations, the Court must
recognize them as such. Without express charges for gender related crimes, it will be
more difficult for the Court to find a way to include many victims of Lubanga’s crimes in
its reparations ruling. In order to include women, judges will need to bend (but not
break) the formal rules, as Odio Benito did in her dissenting judgement, to incorporate
the experiences of women and girls. Gender justice advocates are working hard to ensure
this is the approach of the Trial Chamber. The WIGJ has been quick off the mark in
filing a request to participate in the reparation proceedings where it would argue, in line
with the OTP and Odio Benito, that sexual violence is integral to the acts for which
Lubanga has been found guilty, and therefore victims of this violence should be included
in any reparations decisions (ICC-01/04/01/06-2853).
Conclusions
The first trial at the fledgling International Criminal Court provides at least three lessons
about the interaction between formal and informal rules. The first is that formal and
informal rules can work together in multiple ways in a particular setting to produce
different outcomes; that we should not expect this interaction to be unilateral nor as
Levitsky and Slater suggest, predictable (2011, 10). The interaction between the formal
rules of the ICC, embedded in the Rome Statute and associated documents combined
with informal norms of international criminal law was sometimes competitive, and at
other times congruent and reinforcing. At times the formal rules trumped the informal
(e.g. victim standing in proceedings challenged women’s exclusion from international law
proceedings) but mostly in this case, the resilience and power of informal norms can be
seen to have undermined and distorted the formal (Levitsky and Slater 2011, 9). As a
result we have a mixed outcomes: on the one hand there is evidence of progressive
change towards greater recognition of gender justice principles, while on the other, there
is evidence of the ongoing influence of gender bias norms.
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The second lesson speaks to the intersection between gender and formal and informal
rules. The Lubanga trial has again highlighted the fact that all legal and political
institutions are infused with gender norms that help build the foundation - the gender
logic of appropriateness – on which they operates. These gender norms can exist in
tension alongside newer rules. This was apparent in Lubanga with the OTPs decision to
exclude sexual violence and the Rome Statute’s provision directing the OTP to take them
seriously. Gender norms can also shape the way formal rules are interpreted, as in the
narrow reading of the recharectization of the facts by the Appeal Chamber and the
majority Trial Chamber decision not to include sexual crimes in the verdict.
The third lesson again relates to rules and gender and that is when attempting to trace
informal gender norms it is necessary to monitor inaction, silences and lacunae. Stereotypes
about men and women are imbedded in institutions. In IL, women and gender crimes
have tended to be made invisible. As Prosecutor Bensouda points out this is the result of
‘the prior, and still prevalent, norm of denying their existence, ignoring them, shaming
their victims, and or defining them in legally improvable ways’ (2012, 5). To uncover how
gender works in this setting it is as important to account for actions not undertaken as it is
to analyze those that have. Not investigating crimes that had been documented, not
including gender based crimes in the charges, and not accounting for evidence of these
crimes in the verdict each reinforce gender biases in the law. It is what the ICC failed to
do, as much as what it did, in the Lubanga case that demonstrated the ongoing operation
and power of informal rules in this new arena.
The Lubanga case highlights the critical importance of including informal rules in any
analysis of institutional outcomes. As this account has shown, the Rome Statute, which
contains an advanced articulation of gender justice principles only partially shaped the
outcome of the case. Informal rules, which reflected gender biases often had an equal
and sometimes not more important influence. The case highlights the contestation that
occurs in the space between the formal rules and their implementation. It is in this space
that formal and informal rules jostle for influence. The contest over interpreting the rules
can produce different outcomes. It can reinforce the old, distort the new or lay the
ground for change, or do all three simultaneously. This is what has occurred in the
Lubanga case. Gender biases in IL have been reinforced. New rules that were meant to
provide greater access to victims of gender based crimes have been distorted. At the
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same time opportunities for challenging IL norms have also become apparent. In relation
to the latter, the very articulation of the link between gender and child soldiers is
important. Justice Odio Benito’s reasoning in her dissenting judgement is encouraging.
The appointment of a committed gender justice advocate as the new Prosectuor is
critical. As Bensouda recently made clear, the deal that allows the law to look the other
way when sexual violence occurs is off (2012). Although the Lubanga trial produced
mixed outcomes, for the optimists amongst the gender justice advocates at the ICC, the
future looks promising.
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