Foreign Policy Blogs

Failure to Charge: The ICC, Lubanga & Sexual Violence Crimes in the DRC

On July 14, the prosecution wrapped up its case against Thomas Lubanga, the first ever accused brought before the International Criminal Court (ICC).  Lubanga, the alleged leader of the Union des Patriotes Congolais (UPC), and its military wing the Forces Patriotiques pour la Libération de Congo (FPLC), has been charged with enlisting and conscripting child soldiers between 2002 and 2003, in the northeastern Democratic Republic of the Congo’s (DRC) Ituri region as part of the country’s civil war.

The case ran into problems early on, with a judge provisionally ordering Lubanga’s release (later rescinded) after the defense alleged that the prosecutor had failed to disclose all its evidence and testifying witnesses.

But since the start of the Prosecutionʼs case on January 26th, testimony has made another issue increasingly prominent – while witness after witness testified that young girl soldiers were repeatedly raped by commanders, Lubanga has not been charged with crimes of sexual violence.

‘Not considered human beings’

According to many of the thirty prosecution witnesses – mostly former child soldiers themselves – the repeated rape of girls was a daily occurrence in the militia.

‘[The commanders] took girls and would get them pregnant, and then these girls had to leave the camp and go [back] to the village,’ one witness testified. ‘The recruits weren’t considered human beings, so if someone – a girl – was taken by a commander … this had to be accepted.’

Another witness described how certain girl soldiers were forced to have crudely performed abortions in unsanitary conditions. ‘They took traditional medicines. … They had abortions themselves.’  He saw one 14 year old girl die from complications.

As a result of this and other testimony, on May 22 lawyers for 99 victims participating in the trial (the ICC has special procedures whereby victims may be classified as ʻlegal personsʼ and participate to an extent before the court) petitioned the court to include charges of sexual slavery and cruel and unusual treatment. As the victimsʼ lawyers contend that the facts already presented at trial constitute additional crimes, the new charges could only be based on existing witness testimony and evidence.

But this issue indicates a problem that while it has been widely debated in the Lubanga case, is not unique to this case, or the ICC – that is, if rape was so widespread, why did the original indictment fail to include the charges?

Overlooking Crimes of Sexual Violence

There are several reasons how this omission probably occurred in this and other international war crimes cases. The first culprit is the popular belief that systematic rape in war is the exception; that any rape that occurs is a side effect of a high tension situation, generally perpetrated by the ʻrogue soldier.’  Thus investigators on the ground may not immediately seek out evidence of its occurrence – and sexual violence often does not leave publicly visible marks.

But rape as a weapon of war is far more common than most people realize.

The Japanese in World War II have been condemned for the abduction of over 100,000 women for military brothels where they were used as ‘comfort women.’ Approximately 200,000 women were raped during the battle for Bangladeshi independence in 1971.  And while the fact that 800,000 Tutsis and moderate Hutus were killed during the Rwandan genocide is well known, the estimated 250,000 to 500,000 rapes that occurred, resulting in the conception of at least 20,000 children, is a much less prominent figure.

Second, while some investigators might miss the issue because they werenʼt looking for sexual violence crimes, others might miss it because they were asking the wrong questions.

International tribunal practice has shown that, especially where the evidence gatherer is male (as the great majority of international war crimes investigators are), women in many cultures will either not admit to rape at all, or will use local euphemisms that simply do not translate, leaving the investigator no option but to conclude that no sexual violence occurred.

Similarly, admitting to a rape in many cultures could result in a societal backlash against the woman – she will no longer be fit for marriage, and her family may desert her. After having survived indescribable horrors, she can relive her trauma by admitting what happened, and then look forward to a life of being ostracized by her community should protective measures fail and her identity be revealed.

Moreover, even where an investigator has evidence as to rape, lack of communication with the prosecutor may mean it isnʼt ultimately charged, or itʼs subsequently dropped because the investigator was not properly instructed as to the type of evidence that would prove rape before an international court.

This would seem to be the problem in the Lubanga trial, as an ICC representative stated that Lubanga was not charged with rape because of the way the initial investigation was conducted, they ‘[had] too much evidence, not enough focus’ – possibly implying that while investigators came back with a plethora of child soldier recruitment evidence, they didn’t delve further into rape as it wasn’t part of the crimes they thought they were investigating.

But the largest problem by far, is death. Sadly, in conflict situations many victims of sexual violence are killed or die as a result of injuries sustained or diseases contracted during their rape, and can never recount their stories.

Although these barriers to evidence gathering will always exist – this issue has often been brought to the international communityʼs attention.  A wide range of solutions have been suggested to the ICC and other international tribunals, including encouraging more female investigators, more local investigators, and training investigators as to what constitutes proper sexual violence evidence and how to minimize trauma while still gathering evidence.

Considering that several judgments at the ad hoc Tribunals have determined that rape is so serious that it can constitute not only a war crime and a crime against humanity, but also genocide, and with NGOs insisting the evidence was there for the gathering, one would think that allegations of widespread rape and crimes of sexual violence would have found their way into the ICCʼs inaugural case.

Impunity for Rape in the DRC Today?

The Lubanga trial, like most international war crimes cases, is at heart an attempt to shatter the impunity of leaders for terrible atrocities. But the desired deterrent effect can only be accomplished if (1) these leaders are tried for all relevant crimes and (2) those on the ground are aware that their actions will have consequences.

Otherwise, those in charge might think there are still acts they can get away with, or else might have no fear of any repercussions whatsoever.

But while the ICC states it will keep the people of the DRC informed about the Lubanga trial through a series of outreach programsthe situation on the ground continues to reflect this perceived impunity. With militia groups fueled by profits from ‘conflict minerals‘ (the tin, tantalum and tungsten used in mobile phones), attacks on civilians have dramatically increased this year at the hands of both rebel groups and government forces.  These have resulted in the reported deaths of more than 1,500 civilians, the rape of thousands of women and girls, and the abduction of hundreds of adults and children.

While local military courts have convicted a small number of soldiers for crimes of sexual violence in recent months and the government has announced a ‘zero tolerance’ policy for rape by government forces, the fact that commanders responsible for ordering rape have not been held responsible has been roundly denounced by international critics.

And since the ICC itself has also been unwilling or unable to thus far charge Lubanga with crimes of sexual violence, it is easy to see why the mass rapes – ordered or tolerated by commanders who think they’ll never suffer any consequences – will very likely continue.



Lisa Gambone

Lisa Gambone is a NY attorney who has provided pro bono work for Human Rights Watch, the ICTR Prosecution and Lawyers Without Borders, first while practicing at a large law firm in London, now independently. She has also spent time at the Caprivi high treason trials in Namibia and at human rights organizations in Belfast, London and New York. She has helped edit and provided research for several publications, including case books on the law of the ad hoc tribunals and a critique of the Iraqi Anfal Trial. She holds a JD specializing in International Law from Columbia University, an MA in International Economics and European Studies from Johns Hopkins SAIS, and a BA in International Relations - Security & Diplomacy from Brown University. Here, she covers war crimes and international justice.