by Rosemary Grey

Rosemary Grey is a PhD Candidate at the School of Social Sciences, Faculty of Arts and Social Sciences, University of New South Wales. She has previously written for Beyond The Hague on the possibility of trying persecution on the grounds of sexual orientation under the Rome Statute. Rose can be reached at r.grey@unsw.edu.au and here.

On Monday, Pre-Trial Chamber II of the International Criminal Court (ICC) confirmed the charges against alleged war criminal Bosco Ntaganda, the former commander of an armed group active in the Ituri District of the Democratic Republic of Congo called the Union des Patriotes Congolais/Forces Patriotiques pour la Libération du Congo (UPC-FPLC). For some background on the Ituri conflict, see previous BTH posts here and here.

The Pre-Trial Chamber’s decision considers several important issues, including the sexual exploitation of child soldiers by their commanders. While the case has been underway since 2006, the charges of sexual violence against the child soldiers are a relatively recent development.

In January 2014, following Ntaganda’s unexpected voluntary surrender to the ICC the previous year, ICC Prosecutor Fatou Bendousa submitted the Document Containing the Charges. The Document alleged that Ntaganda was responsible for multiple war crimes and crimes against humanity, relating to the UPC-FPLC’s attacks on the civilian population in Ituri and its use of child soldiers.

The charges of sexual violence were of particular interest, given Prosecutor Bensouda’s stated commitment to prosecuting sexual and gender-based crimes, and her new policy paper on this issue.

In addition to charging Ntaganda with war crimes in the form of rape and sexual slavery against civilians, the Prosecutor charged him with war crimes in the form of rape and sexual slavery against female child soldiers in the UPC-FPLC by their commanders and fellow soldiers.

This was not the first time the ICC has considered the issue of sexual violence against child soldiers by members of their own armed group. The previous ICC Prosecutor raised this same issue in the case concerning UPC-FPLC President Thomas Lubanga Dyilo, who was charged with the war crimes of conscripting or enlisting children under 15, and using them to participate actively in hostilities.

However in that case (Lubanga), the majority of the Trial Chamber declined to determine whether these charges included the sexual abuse of the child soldiers by their commanders, as the then-Prosecutor had not raised this issue at the confirmation of charges stage.

By contrast in Ntaganda, Prosecutor Bensouda clearly signaled her intention to charge the sexual abuse of child soldiers in the UPC-FPLC as war crimes at the confirmation of charges stage. This charging strategy sparked a debate about whether sexual violence perpetrated against child soldiers by their commanders can constitute war crimes under the ICC’s governing instrument, the Rome Statute.

Central to this debate was a dispute about the protections that child soldiers enjoy under international humanitarian law (IHL). The Defence argued that the charges in question violated the principle of legality, because war crimes necessarily involve a violation of IHL, and “international humanitarian law is not intended to protect combatants from crimes committed by combatants within the same group.”

The Prosecution responded by highlighting the special protections that child soldiers enjoy under IHL. It argued that while children may lose their protection from attack when they participate in hostilities, they remain entitled to the other protections children enjoy under the applicable rules of IHL, including the protections against sexual violence.

In Monday’s decision, the Pre-Trial Chamber concluded that sexual violence crimes against child soldiers by their commanders can constitute war crimes. This finding may challenge widely-held views about the limits of IHL, such as those voiced by the Defence in this case. However, it is not without precedent.

For example in a dissenting opinion in Lubanga, Judge Odio Benito held:

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 [21].

And as the Pre-Trial Chamber noted in Ntaganda [at footnote 318], the Special Court for Sierra Leone (SCSL) has also accepted that the sexual abuse of child soldiers by members of their own armed group can constitute war crimes.

The Pre-Trial Chamber was referring to the Taylor case,in which the SCSL Trial Chamber referred to a girl who was both a child soldier and a sexual slave. The girl, whose name was Akiatu Tholley, was abducted in January 1999 and conscripted into an armed group until April/May 1999 [1453-1454]. The Trial Chamber found that towards the end of this period, in April/May 1999, Tholley was used to participate actively in hostilities [1509].

It also found that during her period of conscription, Tholley was used as a sexual slave by the soldier who abducted her. As the SCSL Statute does not specifically enumerate the war crime of sexual slavery, this conduct was charged using the war crime “outrages on personal dignity” [1206(vii)].

In finding that the sexual slavery of this child solider constituted a war crime under the SCSL Statute, the Trial Chamber clarified that:

[E]ach of the victims was not taking an active part in the hostilities at the time of the sexual violence [1207].

The Pre-Trial Chamber used similar reasoning in Ntaganda. When determining that the sexual violence against the UPC-FPLC child soldiers constituted war crimes under the Rome Statute, the Chamber focused on the child soldiers’ role in hostilities at the time the sexual violence took place.

It stated “[c]hildren under the age of 15 years lose the protection afforded by IHL only during their direct / active participation in hostilities,” and continued:

[T]hose subject to rape and/or sexual enslavement cannot be considered to have taken active part in hostilities during the specific time when they were subject to acts of sexual nature …The sexual character of these crimes, which involve elements of force/coercion or the exercise of rights of ownership, logically preclude active participation in hostilities at the same time [79].

This finding strengthens accountability for conflict-related sexual violence, as it affirms that sexual violence perpetrated against child soldiers by their commanders can be charged as war crimes under the Rome Statute. However, it arguably misrepresents sexual violence crimes of an ongoing nature, such as sexual slavery.

The Pre-Trial Chamber reasoned that a child soldier cannot be considered to have taken active part in hostilities at the specific time he or she was a victim of sexual slavery. Many would agree that this is a logical conclusion.

Others may question whether this logic creates a fictional reprieve from sexual slavery, that the child does not enjoy in reality. They may ask: When does sexual slavery, a crime defined by the perpetrator exercising rights of ownership over the victim and causing the victim to engage in acts of a sexual nature, begin and end? Is the victim only subject to sexual slavery in the moment when he or she is forced to engage in a sexual act, or for so long as the perpetrator exercises rights of ownership? And does the sexual slavery stop if the victim is made to take part in hostilities, only to resume at some future point in time?

In reflecting on these questions, it may be relevant to note that “active participation” includes tasks beyond taking part in combat, such as manning checkpoints, guarding weapons, and finding food. Indeed, the Trial Chamber recognized this in Lubanga, stating:

Those who participate actively in hostilities include a wide range of individuals, from those on the front line (who participate directly) through to the boys or girls who are involved in a myriad of roles that support the combatants. All of these activities, which cover either direct or indirect participation, have an underlying common feature: the child concerned is, at the very least, a potential target [628].

To many, the Pre-Trial Chamber’s construction of a binary in which a child soldier is either subjected to sexual violence or taking direct part in hostilities may seem logical. The construction of this binary also serves a practical purpose: it enables the Prosecutor to prosecute Bosco Ntaganda for the alleged sexual abuse of child soldiers in the UPC-FPLC, a useful development given the missed opportunities in Lubanga.More broadly, it allows the ICC to prosecute sexual violence perpetrated against child soldiers by members of the same group, by charging this violence as war crimes under the Rome Statute. These are important steps forward for gender justice.

However if the aim is also to recognize the survivors’ experiences of the crimes and promote a nuanced understanding of sexual violence, it may be worth exploring other ways to prosecute sexual violence against child soldiers by their commanders, in future cases before the Court.