Abstract
This article examines the mixed gender justice outcomes of the International Criminal Court’s (ICC) first case, The Prosecutor v. Thomas Lubanga Dyilo, and argues that they were influenced by competing institutions: older gender-biased norms of international law and new formal gender justice rules of the ICC’s Rome Statute. Using a feminist institutionalist framework, the article suggests that formal and informal institutions work together in multiple ways to produce different outcomes, and that in understanding the operation of informal institutions, it is as important to search for silences and inaction, as it is to identify articulation and action.
Keywords
The International Criminal Court (ICC) handed down its first verdict on March 14, 2012, just prior to its tenth anniversary in July that year. The case involved Thomas Lubanga Dyilo (Lubanga) of the Democratic Republic of Congo (DRC) who was charged with the crimes of conscription, enlistment, and use of child soldiers. Initially, the case was considered to be a relatively straightforward one, able to be dealt with expeditiously. Almost six years to the day after Lubanga was detained in the Hague, Trial Chamber I finally found him guilty as charged. The discrepancy between predictions of a quick, clear-cut trial, and the reality—a three-year case that twice almost collapsed—reflects the challenges inherent in implementing the formal rules of ICC contained in the Rome Statute and associated documents. 1 The complications in the Lubanga case have emerged in what Mahoney and Thelen call institutional “soft spots” and “gaps” (2010, 10)—in this case, between the codified rules of international criminal law and their implementation and interpretation. In this gap has been a conflict between the formal rules and other informal social norms and practices of international law. The conflict has had a particular character: between newly articulated formal rules upholding principles of gender justice and embedded gender-biased norms of international law. This article argues that the collision between these old and new institutions is a key explanatory factor in shaping the direction and outcomes of the Lubanga case. It also confirms some insights from feminist institutionalism about the gender-biased nature of and relationship between formal and informal institutions and how this relationship shapes the operation (and effectiveness) of legal, bureaucratic, and political institutions.
The first part of the article situates the case study in the literature on formal and informal institutions and highlights the importance of integrating a gender analysis into this scholarship. Part 2 provides details of the gender bias norms of international law and attempts to overcome these through the formal rules of the ICC, outlined in the Rome Statute. This is followed by a brief chronology of the three phases of the Lubanga case. Part 4 explores the operation of new formal rules of the Rome Statute and older informal, gender-biased norms of international law during each phase of the case. It shows that the collision between the old informal norms and new formal institutions in Lubanga resulted in only limited recognition of the harms experienced by women and girls involved in the DRC conflict, despite the codification of rules in the Rome Statute aimed precisely at addressing these harms. The article also suggests that the legacy of Lubanga may also yield some positive outcomes, including encouraging internal and external actors at the ICC to be more conscious of gender injustices and work to better implement the formal rules to tackle existing gender biases in international law.
Formal and Informal Institutions and Gender 2
New Institutionalism in all its guises has drawn attention to how the “rules of the game” constrain and enable political actors and influence political outcomes. As Ostrom argues, institutions “operate to rule out some actions and to rule in others” (2005, 18, emphasis added). New institutionalism—across its historical, sociological, rational choice and discursive variants—has focused on the role of formal institutions in this process. Such institutions are “consciously designed and clearly specified” (Lowndes 2005, 292) and include such things as constitutions, statutes, and bylaws, to individual contracts and operational guidelines (North 1990). 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 gives a formal institution its legitimacy (Streek and Thelen 2005).
New institutionalism, especially its sociological branch, has also paid attention to the operation of informal rules alongside and in conjunction with formal institutions to shape actors choices and institutional outcomes (see, for example, March and Olsen 1989). However, “historical institutionalism,” the tradition with which this article also engages has been slower to include informal institutions (Mackay, Kenny, and Chappell 2010, 576), though emerging work is now addressing this gap (Azari and Smith 2012; Helmke and Levitsky 2004; Levitsky and Slater 2011; Mahoney and Thelen 2010; Radnitz 2011). One reason why informal institutions have received less attention is because as Lauth (2000, 26) suggests that they “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, and therefore harder to study (for this point, see Bjarnegard 2013; Chappell and Waylen 2013). As a consequence, this term is often treated as a residual category, and applied to “virtually any behaviour that departs from . . . the written-down rules” (Helmke and Levitsky 2004, 727). Helmke and Levitsky respond with a working definition that identifies informal institutions as “socially shared rules, usually unwritten, that are created, communicated, and enforced outside of officially sanctioned channels” (2004, 727). Azari and Smith agree, arguing that informal institutions exist “when shared expectations outside the official rules of the game structure political behaviour” (2012, 39). They also delimit the term by suggesting that when behavior has no pattern, or when there is no socially shared understanding of the right behavior in a given setting, it cannot be described as an institution. These informal institutions most often take the form of common practices and norms. Norms are understood here in Elinor Ostrom’s (2005, 112) terms, as “shared concepts of what must, must not, or may be appropriate actions or outcomes in particular types of situations.”
Formal and informal institutions are often coupled and closely interact. The informal can work to “weaken, substitute for, or work in parallel with” formal institutions (Radnitz 2011, 352). Informal institutions can fill in the gaps where formal institutions are incomplete, operate as “a second best strategy” when it is difficult to change formal institutions, or allow actors to pursue goals not publicly acceptable including unpopular or illegal activities (Azari and Smith 2012, 41; Helmke and Levitsky 2004, 730). Informal institutions can also distort and stymie formal institutions (Levitsky and Slater 2011). 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” (Helmke and Levistky 2006, 3). It is the job of researchers to uncover these effects and to understand how the two work together to influence institutional outcomes.
The core institutionalism literature may increasingly recognize the interaction between formal and informal institutions, but it remains blind to the gender element of these institutions and the way this prescribes (as well as proscribes) “acceptable” masculine and feminine forms of behavior, rules, and values for men and women within institutions (Chappell 2006a). Feminist scholars working within a neoinstitutionalist framework have drawn attention to this lacuna by demonstrating how political and legal arenas are structured by gender-biased assumptions and “dispositions” (Annesley and Gains 2010; Bjarnegard 2013; Kenny 2013; Krook and Mackay 2011; Mackay and Waylen 2009; Mackay et al. 2010). Such gender biases can inhere in formal institutions, through overtly discriminatory rules that ban women or men from participating in certain activities for instance, or more subtly in informal institutions, through norms—shared assumptions about appropriate behavior—and practices creating a “gendered logic of appropriateness” (Chappell 2006a). While constructions of masculine and feminine norms are both present in any institutional setting, the masculine ideal usually dominates political and legal settings; this ideal shapes “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 marginalized perspectives.
Gender norms may work with or against formal institutions to entrench gender inequalities. Formal institutions that rule out gender discrimination in political selection for instance, can be undermined by the (re)assertion of gender norms, or in Bjarnegard’s terms “homosocial capital,” that privileges male candidates (Bjarnegard 2013; Kenny 2013); importantly, however, individuals are able to learn and adopt new norms (Ostrom 2005), including ones that potentially destabilize male bias (Banazsak and Weldon 2011; see Raymond et al.). This “regendering” (Beckwith 2005) process may offer new political possibilities for those disadvantaged by earlier formal or informal institutional arrangements. For instance, strategies to address violence against women have created new norms around state obligation to adopt new laws and policies to tackle this violence, thereby advancing a gender equality agenda (Weldon 2002; Raymond et al.). The following discussion highlights the interplay between new formal rules and informal institutions of international law and the constraints and opportunities this has created for “re” gendering this institutional arena.
Identifying Gender Bias in International Law
Historically, formal and informal rules of international criminal law have been gendered in two senses: first, through “gender capture” (Goetz 2007), that is, outright male control of the power positions through which the formal rules are made. Men have been the “rule makers” of international law—the judges, lawyers, diplomats, and officials who have set the agenda. The privileges that come from these positions of power (Goetz and Jenkins 2005, 163) have encouraged the incumbents to hold on to them tightly and consciously and unconsciously resist the entry of women into international criminal justice mechanisms. The corollary of men’s traditional dominance of international law has been women’s absence, which has resulted in silencing women’s voices—whether intentional or not—including as judges and advocates as well as victims and perpetrators of war and conflict (see Luping 2009; deGuzman 2012, 38). As Pritchett (2008, 271) argues, “Many of the gendered problems in international law have stemmed from the absence of women’s voices in the highest echelons of international governance.”
The gendered nature of international law has also been reflected through the operation of “gender bias,” that is, the “leakage” of discriminatory gender norms into seemingly impartial law and policy (Goetz and Jenkins 2005, 163). Gender bias has appeared in the formal rules of international law, such as the Geneva conventions, where women have been incorporated primarily as victims of armed conflict and as mothers, but not as independent actors (Gardam and Jarvis 2001). 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 Mouthaan 2011), including targeted sexual and gender-based crimes (e.g., being forced to be soldiers or “wives” or sex slaves of soldiers). While these targeted acts have a long history, the law has largely remained silent on these crimes, leaving women almost completely invisible in legal proceedings. Where the law has formally addressed those crimes commonly experienced by women, especially those of a sexually violent nature, they have historically been treated as lesser crimes to those usually suffered by men. For instance, until recently, international laws on rape treated it as a crime of honor, not a grave breach of law: These laws have not been about protecting individual women from acts of violence but about protecting men from insults inflicted on dependent women by other men (see Gardam and Jarvis 2001; Mouthaan 2011).
Not only have these biases attached to the recognition of substantive crimes, they have also influenced legal procedures, interfering with the investigation and conduct of trials, and the underenforcement of the law (de Guzman 2012). At the investigation and charging stage, cases of sexual violence have often been seen as being too hard to investigate, largely because of the difficulty of gathering “reliable” evidence (Mackinnon 2006). This view is based on a range of gender-biased assumptions, including that the testimony of the victims of these acts—primarily women—is less reliable than others, that these victims are unlikely to want to testify, and it is difficult to devise investigation techniques adequate for interrogating these sorts of crimes. Debunking these views, Catharine Mackinnon (2008, 216) argues,
At times it may be harder to determine if someone was raped than if that person was killed but rape often leaves distinctive marks psychological as well as physical. Identifying the rapist is not essentially more difficult—and may, at times, be easier—than the murderer who may leave no witnesses.
When it comes to trial processes, especially for victims of sexual violence, the application of a “male standard” has also been evident. Traditional doctrines of defense have assumed that “woman should fend off violent attack ‘like a man’ or be considered unchaste and thus unworthy of legal protection for violation.” The male standard has also been reflected in “the ‘fresh complaint’ doctrine, the myth that the truly virtuous woman would immediately complain of any sexual violation” (Ni Aolain, Haynes, and Cahn 2011, 164–65). Such gender biases can be seen as operating as informal institutions in the sense used by Azari and Smith (2012), noted earlier, in that they have constituted shared expectations over time and have helped to structure behavior.
In the past two decades, feminist legal actors have made a considerable effort to shift these gender-biased norms underpinning international law, and with some success. This has included reforms to formal international legal rules, including through the mandate and jurisprudence of the United Nations’ (UN) ad hoc tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR; see Luping 2009; Ni Aolain, Haynes, and Cahn 2011). These tribunals recognized for the first time sexual violence crimes as an element of war crimes, crimes against humanity and genocide, as well as the removal of consent as a defense in rape crimes (Ni Aolain, Haynes, and Cahn 2011). These developments strongly influenced the ICC’s foundation document, the 1998 Rome Statute. Due to intense lobbying efforts by feminist activists (Chappell 2006b), the statute codified a new set of gender justice rules. These included the most advanced recognition ever of crimes of sexual violence as crimes against humanity and war crimes, treating them among the gravest breaches of international law. Included under the category of crimes against humanity are
Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity. (Article 7 (g))
Similar crimes are enumerated as war crimes (see Article 8 (2) (b) (xxii) and 8 (2) (e) (vi)). Under Article 7 (h), gender is also included as a ground for persecution (alongside political, racial, religious, and other such categories). 3 Furthermore, Article 21 (3) prohibits discrimination based on gender in the application and interpretation of the statute. Importantly, the Rome Statute and associated documents also seek to overturn gender biases in procedural practices. For instance, it contains innovative provisions for victim participation in proceedings and specific measures to protect witnesses and victims suffering gender-based violence (Article 68), while the Rule of Procedure and Evidence proscribe both the questioning of rape victims on their previous sexual history and the need for corroboration (Rule 71 and 63 (4)). Through these measures, the ICC, at least in its formal rules, removes the long-held view that a woman’s testimony is worth less than a man’s in a situation of sexual violence.
Gender justice is also “mainstreamed” in other parts of the statute, including in relation to the investigative powers of the prosecutor (discussed further ahead) and in an effort to address “gender capture,” through provisions to ensure that women as well as experts in gender and sexual violence are represented on the bench and in senior positions across all the organs of the Court (see Chappell 2010).
These measures go some way in addressing the longstanding gender biases of international law. However, significant gaps remain under the Rome Statute. As feminist critics have pointed out, the definition of gender in the statute, which was a contentious inclusion, is somewhat confusing and only partially captures the usual understanding of the concept (Chappell 2006b; Oosterveld 2005). The statute has also been criticized for its failure to capture important gendered experiences of nonsexual crimes and its attention to bodily injury at the expense of recognizing other socioeconomic costs of war on men and women (Halley 2008; Nesiah 2011, 149; Ni Aolain, Haynes, and Cahn 2011). Even where the statute has made ground in terms of gender justice, these new formal rules do not automatically cancel out older informal ones. Taking up the point made by historical institutionalists, the gap that exists between formal institutions and their interpretation leaves open spaces for the (re)assertion of old norms and practices that can operate to distort or override the intention of the codified rules (Mahoney and Thelen 2010). As the following discussion shows, this was reflected in the first case before ICC.
The Prosecutor v. Thomas Lubanga Dyilo
In March 2006, Thomas Lubanga was arrested for crimes committed in the conflict in the Ituri region of the Democratic Republic of Congo. Lubanga was identified as a senior figure in the DRC conflict, having been the President of the Union des patriotes congolais, and commander-in-chief of the Forces patriotiques pour la libération du Congo. The Prosecutor, who had publicly committed to “investigate all crimes related to the situation in an impartial way” (Moreno Ocampo 2004, 5) charged Lubanga with war crimes relating to the enlistment and conscription of children under the age of 15 years and using children to participate actively in hostilities.
During the pretrial confirmation of charges proceedings, the Women’s Initiatives for Gender Justice (WIGJ) unsuccessfully sought amicus curiae status to argue that Pre-Trial Chamber request the Prosecution to consider expanding the charges to include sexual violence crimes. In January 2007, the Pre-Trial Chamber confirmed the original child soldiers charges and the proceedings moved to the Trial Chamber. The trial finally commenced in January 2009 after several delays due to a range of legal issues, including the decision by the Prosecution to withhold evidence from the Defense. The case stalled again in May 2009 when lawyers for victims in the case filed an application to have the charges recharacterized to include sexual slavery and cruel and inhuman treatment, an application that was dismissed on appeal. After further delay due to litigation over the use of intermediaries, in August 2011 the Prosecution and Defense counsel presented closing statements, and in March 2012, the Chamber handed down its verdict, finding Lubanga guilty on all counts. On July 10, 2012, Lubanga received a fourteen-year sentence, including time he had already spent in detention. A month later, the bench handed down its decision on the principles and procedures to be applied to reparations 4 in the case.
Phase 1: Investigation and Charges
Under the Rome Statue, the Prosecutor enjoys significant discretion in bringing cases before the ICC: a necessary provision given the number of potential crimes and perpetrators under its jurisdiction and the limited resources at the Court’s disposal. Under the supervision of the Pre-Trial Chamber, the Prosecutor has the authority to request the opening of an investigation, and to select the charges. In exercising his or her discretion, the Prosecutor must take into account “the gravity of the crimes, the interests of victims,” and “the interests of justice,” and will be driven by those with the most compelling evidence (Article 53; de Guzman 2012, 14). In carrying out the position, the Prosecutor is also charged with ensuring “effective investigations” and is specifically mandated to take into account the nature of the crime, in particular where it involves “sexual violence, gender violence or violence against children” (Article 54).
In the Lubanga case, the Prosecutor used his discretion to pursue child soldier charges and not crimes of sexual violence. In explaining this decision, the Prosecutor and his office advanced the following justification:
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]. (in Yates 2009)
Based on this explanation, expediency and evidence appeared to be the factors driving the Prosecutor’s decision making. Timing mattered first because Lubanga was in detention in the DRC and the Prosecutor considered if he did not move fast, the accused would be released from custody and would be difficult to recapture (Coalition for the ICC [CICC] 2007). Timing also mattered because of a broad concern by the Prosecutor and the ICC supporters more generally that the Court needed to complete its initial cases as expeditiously as possible to secure its legitimacy in the eyes of the international community. To achieve this outcome, the Office of the Prosecutor (OTP) had adopted a strategy of focused investigations and prosecutions. As the OTP’s (2006a, 5-6) strategy document explains, this approach
means that the Office selects a limited number of incidents and as few witnesses as possible are called to testify. This allows the Office to carry out short investigations and propose expeditious trials while aiming to represent the entire range of criminality. In principle, incidents will be selected to provide a sample that is reflective of the gravest incidents and the main types of victimization. Sometimes there are conflicting interests which force the Office to focus on only one part of the criminality in a particular conflict.
In relation to evidence, as the earlier quote suggests, it was the Prosecutor’s view that at the time of the indictment, he was not in possession of the evidence to link the accused to sexual crimes. WIGJ also noted that initially the OTP was also of the view that the attacks were not systematic, and therefore would not meet the threshold for a crime against humanity (see WIGJ 2006). However, at the time of Lubanga’s indictment, the Prosecutor did commit to continuing the investigation into other crimes as allowed under Article 61 (ICC 01/04-01/06-170). Later, in June 2006, the Prosecutor withdrew this commitment stating that he had “temporarily suspended” further investigation into additional charges and had no intention to amend the charges during the proceedings (ICC 01/04-01/06-170). In the event, the Prosecutor had three years—from the time of Lubanga’s arrest in January 2006 and the start of the trial in January 2009—to investigate crimes of sexual violence and amend the charges, but he declined to do so.
Both academic and nongovernmental organizations (NGO) commentators have challenged the Prosecutor’s rendering of the application of prosecutorial discretion in the Lubanga case. They take issue with the suggestion that there was not sufficient evidence to pursue charges of sexual violence (Pritchett 2008; Smith 2011; WIGJ 2008). They point to the substantial publicly available documentation gathered by the ICC Office of the Prosecutor itself, the Secretary General of the UN, and many NGOs over the years that indicated 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 (Amnesty International 2003; Human Rights Watch [HRW] 2002). As one commentator noted, the actual number of sexual assaults in the DRC conflict were difficult to count, but it was widely agreed they had “reached a massive scale in both frequency and brutality” (Smith 2011, 471). In August 2006, the WIGJ undertook its own investigations in the DRC. Drawing on thirty-one eyewitness accounts, the WIGJ “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 Lubanga’s militia, and confirmed that women victims/survivors were willing to be interviewed by the ICC” (Inder 2011). The WIGJ sent a dossier to the Prosecutor documenting this evidence, but received no response. The Women’s Initiatives also took issue with the view of the OTP that the crimes were not “systematic,” and therefore failed to meet the “crimes against humanity” threshold. Brigid Inder recollects a 2006 meeting with the Prosecutor’s office to discuss the charges:
They [the prosecutor’s office] didn’t believe there was a pattern or a policy [of sexual violence] . . . Yes, they conceded those crimes were being committed or appeared to be being committed by individual units of the UPC but it wasn’t a policy, it wasn’t systemic. And we said, “Well how many errant militia units do you need before it is systemic?” “You still have time to open investigations into this, in your ongoing investigations you could be prioritising this.” But they didn’t intend to and said no, they would not be amending their arrest warrant. (Inder 2012, interview)
When requests for the OTP to continue investigating sexual violence in the Lubanga case were ignored, Women’s Initiatives attempted to work within the formal rules to encourage the Prosecutor to amend the charges. In September 2006, the WIGJ applied to become the first NGO to submit an amicus curiae brief before the ICC. It requested Pre-Trial Chamber I to use its powers 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 highlighted 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 2008). The Pre-Trial Chamber declined WIJG’s request. After this episode, the prosecutor’s office took no steps to amend the charges to include sexual crimes and nor did the Prosecutor or Senior Trial Attorney make any mention of the issue of sexual violence at the confirmation hearing (see OTP 2006b, 2006c; Pritchett 2008).
Phase 2: The Trial
The Prosecutor’s decision not to pursue crimes of sexual violence at the investigation and charging stages reverberated throughout Lubanga’s trial. Although absent from the charges, very early in the hearings both prosecution and defense 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 experience. As the trial progressed, testimony that the specific crime of sexual enslavement of girl soldiers was a feature of the Lubanga case came to light (ICC-01/04-01/06-1891-tENG). These accounts also indicated that the militia led by Lubanga was involved in training boys to commit rape and other sexual crimes.
Given its refusal to include these crimes in its indictment, it was surprising that the Prosecutor’s case came to rest heavily on sexual violence against girl soldiers. Fifteen of the twenty-five prosecution witnesses, who testified in the trial mentioned girl soldier experiences of sexual violence (WIGJ 2012a, 250). The UN Special Representative for Children and Armed Conflict, Radhika Coomaraswamy, also testified for the prosecution as an expert witness on the sexual elements of child soldier experiences (ICC-01/04-01/06-T-223-ENG).
Due to the emergence of this testimony, in May 2009, the legal representatives for victims unsuccessfully sought to address the lack of specific charges, including sexual slavery, by seeking to have the Trial Chamber to recharacterize the legal facts of the case under Regulation 55 (ICC-01/04-01/06-1891-tENG). This regulation was much more restrictive than what existed at the UN ad hoc tribunals. Whereas the tribunal judges had the right to amend charges during the trial, the designers of the Rome Statute provided the more limited option of recharacterizing the charges (ICC-BD/01-01-04 Regulation 55; Schabas 2011). The point of this rule was 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). After extensive litigation on the regulation, the victim’s representatives’ submission was refused: in denying the application, the Trial Chamber made it clear once again that its was constrained by the Prosecutor’s charging strategy because “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; see Ferstman 2012).
Soon after this decision, the Defense tried to further limit the scope of proceedings by challenging the Trial Chamber on the appropriateness of questioning witnesses and victims. It specifically criticized Judge Odio Benito’s questioning of prosecution witnesses on issues related to sexual violence that they saw as “demonstrating the Judge’s own opinion” (ICC-01/04-01/06-2252). The Chamber rejected the challenge but nevertheless this intervention, together with the litigation on the recharacterization of charges, had a “chilling” effect on 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 [Lubanga’s militia] soldiers. At the very least, for reasons of trial economy, you will please move on to another subject. (ICC-01/04-01/06-T-276-Red-ENG, 72, lines 9-15)
At the end of the trial, the Prosecutor attempted to provide a coherent explanation of its charging strategy. In its closing statement, the Office of the Prosecutor made clear 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-01/04-01/06-2748-Red, para. 139) and encouraged the judges to be mindful of this characterization when making decisions at the sentencing and reparation stages. This approach did not sit well with the judges who, in a tense exchange with the Prosecutor, quizzed him about the Prosecution’s position on sexual violence. Prosecutor Ocampo responded by suggesting that it was deliberate strategy 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 (ICC-01/04-01/06-T-356-ENG, 55).
Phase 3: The Verdict, Sentencing, and Reparation Decisions
After much anticipation, on March 14, 2012, Trial Chamber I handed down its verdict n Lubanga. The judges’ were unanimous in finding the accused guilty on all three counts—conscripting, enlisting, and using child soldiers in the Ituri conflict (ICC-01/04-01/06-T-359-ENG), with Judge Odio Benito submitting a dissenting opinion. The majority decision, the issue of sexual violence received minimal attention. The judges found evidence to establish “that children, mainly girls, were used by UPC/FPLC commanders to carry out domestic work” and that “girl soldiers were subjected to sexual violence and rape.” However, Judges Blattman and Fulford noted that “[s]exual 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” (ICC-01/04-01/06-T-359-ENG, para. 29).
While 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 2012b), they were given some satisfaction with Judge Odio Benito’s dissention. In line with the Prosecution’s reasoning, Odio Benito found that it was rights to see sexual violence as “embedded in the crimes of which Mr. Lubanga is accused” (ICC-01/04-01/06-2842, para. 21). 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. (ICC-01/04-01/06-2842, para. 20)
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. (ICC-01/04-01/06-2842, para. 21)
In making these statements, Odio Benito was conscious of wanting to make visible aspects of the crimes experienced by girls that were not otherwise acknowledged (ICC-01/04-01/06-2842, para. 16). In her opinion, crimes of sexual violence could have been evaluated separately had the Prosecution included them in the charges (ICC-01/04-01/06-2842, para. 20). Her approach has not been met with universal approval. While sympathetic to the need to adopt an inclusive approach to crimes of sexual violence, Kai Ambos criticized Judge Odio Benito for overstepping the mark in this case. In his view, her dissent “appears rather as a policy speech for certain constituencies in the NGO community than a strict judicial analysis” (Ambos 2012, fn. 156, 138), and he is concerned that her judgment contravenes Article 22, which stipulates that definitions of crimes need to be “strictly construed” and “not extended by analogy.” But for Ambos and other commentators, the more significant criticism is directed toward the Prosecutor who tried to “squeeze the sex crimes” into the crime of using child soldiers, “instead of requesting an amendment of the charges” (2012, fn. 156, 138) before the commencement of the trial.
The effort by Odio Benito to bring the experience of girl soldiers to the forefront of the Lubanga case was not reflected in the sentencing decision (again with Odio Benito dissenting) handed down on July 10, 2012 (ICC-01/04-01/06-2901). Again the Chamber was forthright in its criticism of the Prosecutor’s treatment of sexual violence in this case. It stated,
The Chamber strongly deprecates the attitude of the former Prosecutor in relation to the issue of sexual violence. He advanced extensive submissions as regards sexual violence in his opening and closing submissions at trial, and in his arguments on sentence he contended that sexual violence is an aggravating factor that should be reflected by the Chamber. However, not only did the former Prosecutor fail to apply to include sexual violence or sexual slavery at any stage during these proceedings, including in the original charges, but he actively opposed taking this step during the trial when he submitted that it would cause unfairness to the accused if he was convicted on this basis. Notwithstanding this stance on his part throughout these proceedings, he suggested that sexual violence ought to be considered for the purposes of sentencing. (ICC-01/04-01/06-2901, para. 60)
After assessing the Prosecution and Defense arguments, the majority decided that the Prosecution had not demonstrated that sexual violence against girl soldiers was “sufficiently widespread” or that Lubanga had “ordered or encouraged sexual violence, that he was aware of it or that it could otherwise be attributed to him in a way that reflects his culpability” (ICC-01/04-01/06-2901, para. 74). Because of insufficient evidence linking Lubanga to sexual violence beyond a reasonable doubt, the majority could not include these crimes in its sentencing decision (ICC-01/04-01/06-2901, para. 75). It did however leave the door open for considering these crimes in the reparations ruling.
Judge Odio Benito again filed a separate dissenting opinion. She “strongly disagreed” about disregarding the damage sexual violence caused to the victims in the sentencing. Citing witness testimony of rape and sexual slavery and the consequences of these including HIV infection, impregnation, miscarriage, and abortion, Odio Benito argued that these crimes would have transgenerational effects, including on the parents of the child soldiers and the children borne by child soldiers. In her view, “these acts resulted in serious and often irreparable harm to the victims and their families” (ICC-01/04-01/06-2901, 50) that should be reflected in the sentence.
On August 7, 2012, the Trial Chamber handed down the reparation principles in the Lubanga case. This was an important moment for the Court, marking the last stage of the proceedings in its first trial (aside from any appeal) and triggering for the first time the Rome Statute’s groundbreaking reparation provisions under Article 75 (for a full discussion, see McCarthy 2012), which give the ICC a victim’s redress mandate.
In developing the principles for reparations in this case, the Chamber first called for submissions from interested parties. It accepted a range of filings from the key organs of the Court, the Trust Fund for Victims (TFV), as well as five NGOs, including the WIGJ. Many of these submissions called for the representation of girl soldiers and victims of sexual violence and for gender sensitivity in designing and implementing reparations (see TFV 2012; OTP 2012), with the WIGJ’s the most comprehensive of these. Women’s Initiatives supported both collective and individual reparations and called for the Court to implement reparations that would be transformative “addressing existing gender inequalities within communities, advancing gender equality through the types of programmes funded and the type of support provided to victims’ communities” (WIGJ 2012c, ICC-01/04-01/06, 10).
The reparation decision of the Trial Chamber stood in stark contrast to its earlier decisions in the Lubanga case. Here the two majority judges in the verdict and sentencing phases were more receptive to calls for them to take gender justice concerns into account. The three trial judges agreed that reparations should not be limited to those individuals who submitted an application for victim status and should include both individual and collective awards. In their view, reparations “are to be applied in a broad and flexible manner” (ICC-01/04-01/06, 65) and stated that “[i]n all matters relating to reparations, the Court shall take into account the needs of all the victims, and particularly children,—the elderly, those with disabilities and the victims of sexual or gender violence” (ICC-01/04-01/06, 68). The chamber further noted,:
The Court must reflect the fact that the consequences of these [sexual and gender violence] crimes are complicated and they operate on a number of levels; their impact can extend over a long period of time; they affect women and girls, men and boys, together with their families and communities; and they require a specialist, integrated and multidisciplinary approach. (ICC-01/04-01/06, 72)
The judges agreed that reparations needed to be “transformative” and avoid reinforcing previous structural inequalities and perpetuating prior discriminatory practices (ICC-01/04-01/06, 76). In recommending steps for the development of reparations programmes, to be delivered through the Trust Fund, the Chamber stressed the need for the Court to bring together a team of experts including specialists in child and gender issues (ICC-01/04-01/06, 86).
The principles outlined by the Chamber were well received by key advocacy groups. The WIGJ saw them as “highly significant” and as addressing “some of the underlying injustices and inequalities and may contribute, even if in some small way, to transforming communal and gender relations” (WIGJ 2012d, 2). The International Centre for Transitional Justice (ICTJ, 2012) was cautious about celebrating the decision before any reparations were implemented on the ground, but on the issue of gender noted,
By dealing with sexual violence and gender considerations, the court is effectively saying that the right to reparations covers a broader range of issues, and it deals with harm to victims that shouldn’t be subjected to the narrow considerations of the prosecutors’ strategy.
The Conflict between Formal and Informal Institutions in the Lubanga Case
During the three phases of the Lubanga case, formal rules and informal norms and practices of international law interacted in a myriad of ways to influence gender justice outcomes. While it was likely that the Prosecutor needed to act expeditiously to arrest Lubanga and was certainly within his powers to make a strategic selection of charges in this case, these were not the only factors at play. During the investigation and charging phase of the case, some preexisting gender-biased social norms of international law reasserted themselves and trumped the new, formal gender justice provisions codified in the Rome Statute. The Rome Statute provisions on sexual violence were “a thousand times better than what ICTY or ICTRever had” (Inder 2012): they recognize a broad range of sexual crimes often experienced by women, charge the prosecutor with the duty of investigating crimes of sexual violence, and provide the prosecutor through the Pre-Trial Chamber process with the means to correct mistakes in the initial charging strategy. Nevertheless, in the Lubanga case, these provisions were bypassed, despite knowledge, if not at the time of Lubanga’s arrest, then certainly by the time he came to trial, of “widespread and systematic” sexual violence against women and girls in the DRC conflict. Prosecutorial discretion provided the “grey zone” or gap through which informal institutions of international law were able to reassert themselves and disrupt the implementation of new rules of the Rome Statute.
The most obvious of these norms was the assumption that gathering evidence to prosecute sexual crimes is much more difficult than for other offences. As Brigid Inder recollects, when she first confronted Office of the Prosecutor staff during the investigation phase, the view of the office was, “they couldn’t find them [the victims]. Women don’t want to talk about these things. There’s too much stigma. They’re not willing to be interviewed.” To Inder, this stance “was preposterous.” If the WIGJ could produce a dossier with evidence of 31 eyewitnesses to these crimes, why not the staff in the Prosecutor’s office? Academic commentators support this view that the OTP had bought in to the long-held view that these crimes are too hard to prosecute because of the lack of evidence (Pritchett 2008; Smith 2011, 479). The policy of streamlined indictments, as set out by the Office of the Prosecutor in 2006, served to reinforce this norm—directing attention to those cases that are considered “easier” to prove. As Pritchett (2008, 292) argues in relation to the Lubanga investigation,
A Prosecutorial strategy of efficiency and streamlined indictments has proven that when timelines are pressing, budgets are stretched, and security situations are challenging, charges of gendered violence are abandoned for “easier” or “more obvious” crimes.
Preexisting norms about the difficulty of gathering the evidence to prosecute sexual crimes have been under challenge for some time. Assessments emerging from the ad hoc tribunals, within the ICC itself and by legal scholars and experts have undermined the preconception that such crimes are more difficult or burdensome to investigate and charge (Ambos 2012; Bianchi 2011; Luping 2009). A review of the low rate of successful prosecutions for sexual violence at the Rwandan tribunal found that the problem arose “not because of the lack of the evidence, but more because of the lack of experience in how to properly elicit the necessary evidence that would support a conviction” (Bianchi 2011). In other words, the successful prosecution of sexual violence is not necessarily harder than that for other crimes, but it requires different processes. At a minimum, it is necessary to comprehensively integrate investigations into these crimes from the outset, and have such work undertaken by skilled personnel (Ambos 2012; Bianchi 2011; Luping 2009). In strengthening the prosecution of sexual violence, commentators have also argued the need to “mainstream” sexual violence investigations into broader criminal investigations as well as undertake focused, thematic prosecutions of sexual violence (see Oosterveld 2012).
The argument in relation to the Lubanga case is not that prosecutorial discretion was driven solely by gender-biased norms, or that the Prosecutor himself deliberately ignored the plight of sexual violence victims. Rather, the point is that preexisting informal institutions—in this case, gendered conceptions about the difficulty of gathering evidence for sexual violence—were able to fill a gap that exists between the formal rules and their implementation and interpretation (at the point of prosecutorial discretion). In doing so, the informal distorted and stymied the operation of new codified rules, especially relating to the Prosecutor’s mandate to pursue sexual violence investigations. The costs were significant: the conflict between formal and informal institutions resulted in the erasure of “the distinctively female face of the devastating war in the DRC” (Merope 2011, 323; see Smith 2011) and reinforced the view that there is “almost inevitable tendency for crimes that are seen simply or primarily as crimes against women to be treated as of secondary importance” (Copelon in Pritchett 2008, 265).
During the trial phase, the Prosecutor attempted to shift the direction of proceedings to better reflect the gender justice intention underlying the formal rules of the Rome Statute by “mainstreaming” sexual violence into proceedings through testimony about the sexual crimes experienced by women and girls at the hands of Lubanga’s militia, and the training of boys to commit these acts. Here was an example of the prosecutor’s office working with new formal rules—victim participation in proceedings—to challenge gender capture that had previously made these experiences invisible, and to provide a more nuanced account of the experiences of child soldiers. Evidence from victims and experts brought to light issues about the recruitment and use of child soldiers in noncombatant roles, especially for sexual purposes and wives (ICC-01/04-01/06-1229-AnxA). It 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” (Merope 2011, 342). It also exposed the experience of boys, especially their involvement in and experience of sexual violence.
At the same time, other new codified rules, especially those restricting amendment of charges during the trial, served to reinforce the marginalized position of sexual violence victims. As discussed earlier, to protect defense rights, the Rome Statute disallows the chamber to amend charges during a trial. Yet these rules are not gender neutral. As the experience at the Rwandan and Former Yugoslavia tribunals has demonstrated, sex crimes often only emerge during the trial stage—in part because prosecutors have historically failed to adequately investigate these crimes (Merope 2011, 321). Whereas, for example, at the Rwandan tribunal, the formal rules allowed Judge Pillay to amend the charges in the Akayesu case to include sexual violence as a basis for genocide, under the rules of the Rome Statute, no such move is possible. An effort by ICC Judge Odio Benito’s to work around these amendment restrictions by drawing out victim testimony during the Lubanga trial was curtailed by the Defense. Such developments raise critical questions for future ICC practice when evidence of sexual violence emerges during the trial phase, and the need for the prosecution to pay careful attention to including these charges from the outset (Ferstman 2012; Merope 2011, 322; Smith 2011).
The last phase of the case,5 especially the verdict and sentencing decisions, indicated further collision and competition between informal and formal rules, with mixed outcomes. Different interpretations of the formal rules were evident in the majority and dissenting verdict and sentencing judgments. Issues of gender justice were at the heart of these differences. Whereas the majority 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. In her dissenting opinions, this judge offered an alternative interpretation of the law. Odio Benito may not have altered the outcome of this case, but her views demonstrate the importance of challenging gender capture by including a feminist-minded judge on the bench (see Vélez 2009; Odio Benito, forthcoming). Furthermore, her opinions potentially have the ability to challenge gender bias and “regender” international law by providing an example to other judges about how to integrate a gender-sensitive approach into their interpretations of the law. Equally, however, there is a chance her position could produce a backlash (see Kenney 2013, 135-160): the view, echoed by Ambos (2012) and others (Jacobs 2012), that Odio Benito had pushed the formal rules beyond their limits to embrace sexual violence could encourage a greater conservatism from judges in instances where the prosecutor has not included charges of sexual violence.
Of all the aspects of the case, the reparation principles handed down by the Chamber stand out as offering the greatest challenge to informal gender bias rules of international law. In this instance, the Chamber adopted an expansive interpretation of the formal rules about setting reparation principles, including the need to address crimes not included in the charges (a point currently under appeal by the Defense). Their ruling incorporated the varied experiences of victims of sexual violence and pressed for greater recognition of the different harms done to men and boys and women and girls in conflict situations. If implemented in full (and there are reasons to be skeptical about whether this will occur, including current appeals of the decision), these principles may be transformative, offering a new avenue for addressing some elements of existing gender capture and gender bias under international law (see ICTJ 2012; Durbach and Chappell, forthcoming). If nothing else, this last stage of the trial demonstrated a degree of recognition of existing gender bias of the law that was entirely absent at the start of the Lubanga case, and provides an important foundation for the future work of the ICC.
Conclusion
Three important insights can be drawn from the Lubanga case about the interaction between formal rules and gender-biased norms operating as informal institutions. In attempting to understand the gendered operation and outcomes of institutional arenas, it is essential to analyze informal rules. As Mahoney and Thelen suggest, “even when institutions are formally codified, their guiding expectations often remain ambiguous and always subject to interpretation, debate and contestation” (2010, 11). As this account has shown, the formal rules of the Rome Statute, which contains the advanced articulation ever of gender justice principles under international law, only partially shaped the outcome of the case. Informal rules did the rest. The Lubanga trial can only make sense once the both formal and informal rules are accounted for.
Second, in line with Helmke and Slater (2011) formal and informal rules can work together in multiple ways in a particular setting to produce different outcomes: Their interaction can reinforce the old, distort the new, lay the ground for change, or do all three simultaneously. In this case, new formal rules trumped the old informal gender-biased norms (e.g., reparations to address sexual violence crimes against women and girls), but the resilience of informal norms also undermined and distorted the formal (in particular, perceptions of the difficulty of gathering evidence on sexual violence). As a result, the case has produced mixed outcomes in terms of gender justice. On the one hand, it set the stage for greater female representation in proceedings—on the bench and in the witness box—and helped differentiate the experiences of men and women in conflict. On the other, it demonstrated ongoing challenges long identified by feminist legal scholars in integrating and translating these experiences through international law (see Pritchett 2008).
The third lesson is a methodological one and relates to the importance of monitoring inaction, silences, and lacunae when attempting to identify informal gender rules. In international law, women and sexual crimes have historically been made invisible (Charlesworth 1999). As the ICC’s second Prosecutor, Fatou Bensouda has pointed out, this is the result of “the prior, and still prevalent, norm of denying their [crimes of sexual violence] existence, ignoring them, shaming their victims, and or defining them in legally improvable ways” (2012, 5). To uncover how gender works in a setting such as the ICC, it is therefore as important to account for actions not undertaken as it is to analyze those that have. Not investigating crimes that have been documented, not including gender-based crimes in the charges, and not accounting for evidence of these crimes in the verdict each demonstrates and reinforces 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.
In the Lubanga case, old gender biases in international law have been reinforced and new rules that were meant to provide greater access to victims of gender-based crimes have been distorted. At the same time, opportunities for challenging international law 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 judgment pushes the boundaries. The obvious gender sensitivities in the reparation principles are groundbreaking. The appointment in 2012 of a committed gender justice advocate as the new prosecutor is critical. These all augur well for pursuing gender justice at ICC. But if this case teaches us anything, it is that unraveling gender capture and bias under international law requires more than the codification of new rules. It will require ongoing perseverance and constant advocacy and monitoring—including from inside the Court from the Office of the Prosecutor and on the bench, and from civil society and academic commentators—to expose and challenge long-held assumptions and practices about men and women’s experiences of war and conflict.
This case study shows the benefits of a feminist institutionalist approach. Institutionalists are right to pay attention to the ways different types of rules interact to produce outcomes, and also to argue, along the lines of Mahoney and Thelen (2010), that the most important institutional developments happen in the gaps and soft spots between formal rules and their implementation, as this is where informal rules do most of their work. Feminist institutionalists are also right to draw attention to the gendered nature of formal rules and informal assumptions and practices as they profoundly affect institutional outcomes. More cases of this type are needed for us to better understand how the formal and informal interact to shape men’s as well as women’s lives, as well to better conceptualize how to challenge and reshape existing formal and informal institutions to the benefit of all.
Footnotes
Acknowledgements
I would like to thank Laurel Weldon and Leigh Raymond, other organizers, and participants at the Purdue “Intractable Problems Workshop,” and the anonymous reviewers for very helpful suggestions for improving the paper. I am also grateful to Emily Waller and Rose Grey for their invaluable research assistance.
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: The research for this article was supported by an Australian Research Council Future Fellowship grant (FT 0991602).