By Widney Brown
Any delight at the historic first verdict of the International Criminal Court (ICC) convicting Thomas Lubanga Dyilo of recruiting and using under-15s in armed conflict must be tempered by the prosecutor’s failure to investigate adequately claims of sexual violence against girl soldiers.
Judge Adrian Fulford indicated when delivering the Court’s decision, although the court heard evidence during the trial of rape of girls as part of their recruitment, they could not make any finding as there were no related charges.
It is impossible to know if such charges could have been brought because the records indicate that crimes of sexual violence were not fully investigated in the first place.
This is yet another example of how women and girls’ specific experience of violence in armed conflict is sidelined.
The worst case of denial was the Far East Tokyo Tribunal failure to address the widespread and systematic sexual slavery practised by the Japanese army during World War II.
Although the ad hoc tribunals for both the former Yugoslavia and Rwanda did prosecute cases of sexual violence, arguably those cases failed to reflect the scale of sexual violence during the war in Bosnia-Herzegovina and the genocide in Rwanda.
Part of recovery and healing is to have the harm recognized otherwise survivors and victims are placed in the limbo of having experienced the violence without the experience being validated. Lack of validation can lead others to deny the harm suffered, question the veracity of the victims and stigmatize those who insist on telling the truth.
When crimes of sexual violence are ignored, it is more difficult for the communities of victims to access reparation. Reparations include services for survivors including health care and counselling.
In the case of the women who were held as sexual slaves by the Japanese, there was no effort to provide health care and counselling, to repatriate the women to the countries in which they lived prior to being enslaved, or to compensate them for the harm they suffered. For decades after the end of the war, those who survived this enslavement report how their lives and hopes were destroyed first by the Japanese and then by the denial about their experiences.
Victims of sexual violence require particular services and reparations awards can provide these. Specifically, women and girls may need reconstructive surgery to address mutilation.
They may need specialized counselling to address how they can reclaim their sexual and reproductive rights.
If the sexual violence resulted in a pregnancy, the woman or girl may need access to abortion services or if, is too late, assistance in dealing with a child born from sexual violence. When the violence itself is ignored or denied, the reparations may fail to meet the women and girls’ specific needs.
In the Lubanga case, the failure to fully investigate allegations of sexual violence against girl child soldiers has practical and immediate implications for the girls: The totality of the harm they suffered as girl child soldiers, which included sexual violence, will not be addressed in any award for reparation that the ICC might now order for the victims of Lubanga’s crimes.
That is because the ICC can make reparation orders only in relation to crimes for which a person has been convicted.
So, the Prosecutor’s decision to exclude crimes of sexual violence against child soldiers, especially girls, limits or denies them their right, under international law, to proper reparation.
Finally, for hundreds of years we have lived with contradictory attitudes towards sexual violence against women in the context of war.
In Henry V, Shakespeare writes of commanders allowing soldiers to rape and pillage after a successful siege – that is women as reward.
Allegations of sexual violence against women in a community are often used to rally the troops to defend – not the women necessarily – rather the “honour” of the community.
Mostly, we have seen that sexual violence in war is treated as inevitable, albeit regrettable.
This is not acceptable.
When it was recently reported that a US Army sergeant deliberately killed 16 civilians in Afghanistan, there was an outcry and a rapid and straightforward condemnation of his alleged actions.
It is clear that the prohibition against deliberately killings civilians is taken seriously and breaches of the prohibition are also taken seriously.
It is unimaginable that this case will not be pursued if the evidence is credible. This sends a message. Those crimes we take seriously are vigorously pursued in our justice systems. The ambiguity of society’s response to sexual violence in non-conflict situations in many ways seems to have spilled over into conflict situations.
When confronted with this failure, investigators, prosecutors and others often hide behind the victims: They claim that the women and girls who have been raped are ashamed, reluctant to come forward to tell their stories and afraid.
But there is another way to analyse this. Perhaps the victims do not come forward because they know that there is a very real danger that their stories will be ignored, investigations will falter, they will be blamed – even punished and humiliated - and justice will remain beyond their grasp.
In short, cases of sexual violence make many people uncomfortable so the system becomes complicit in the shame and silence. Survivors deserve truth, justice and full reparation - not denial. The prosecutor for the International Criminal Court must do better the next time.
Lubanga: Why the ICC must do better
By Widney Brown