3.3 THE APPLICATION OF THE PROSECUTOR’S DISCRETION RELATING TO SEXUAL AND GENDER-BASED CRIMES
3.3.1 Avoiding Prosecuting Sexual and Gender-based Crimes
The Thomas Lubanga Dyilo case was the first that the Prosecutor brought before the ICC.
Lubanga was the President of the Union des Patriotes Congolais/Réconciliation et Paix (UPC/RP), a group that committed various atrocities, including SGBCs in Ituri, situated in the north-eastern part of the DRC. A letter addressed to the President of the Security Council from the Secretary-General confirms that this group committed crimes of sexual and gender-based violence:
UPC forces shelled hundreds of Lendu villages without making any distinction between armed combatants and civilians. Some villages in Djugu territory were the object of repeated attacks when the inhabitants returned and rebuilt during calmer periods. Each time that they took control of Bunia — August 2002 and May 2003 —UPC forces conducted a manhunt for Lendu, Bira, Nande and non-Iturians whom they considered opponents: many persons were killed and many situation in Darfur, Sudan to the ICC on 31 March 2005, under Resolution 1593 (2005). Cases and Situations Darfur, available at http://www.iccnow.org/?mod=darfur (accessed 31 October 2016). The situation in Libya was referred by the Security Council by Resolution 1970 (2011) on 26 February 2011. This was the first time that the Security Council unanimously adopted such a resolution. Libya – Coalition for the International Criminal ICC, available at www.iccnow.org/?mod=Libya (accessed 31 October 2016). All Cases – ICC, available at
www.icc.cpi.int/.../icc/situations%20and%20cases/cases/.../cases%20inde... (accessed 31 October 2016). ICC – Libya, available at www.icc.cpi.int/.../icc/situations%20and%20cases/.../icc0111/.../situation (accessed 31 October 2016).
The Prosecutor has also exercised her proprio motu powers in situations in Kenya and Cote d’Ivoire, where the crimes charged, which included rape, occurred during post-election violence. The Kenyan situation occurred between 2007 and 2008 and the Cote d’Ivoire situation between December 2010 and April 2011.
627 OTP, Report on the activities performed during the first three years (June 2003 – June 2006), 12 September 2006 at 2 available at https://www.icc-cpi.int/NR/rdonlyres/.../OTP_3yearreport20060914_English.pdf (accessed 31 October 2016). ICC – The Office of the Prosecutor of the International Criminal Court opens its first investigation, 23 June 2004 available at
www.icc-cpi.int/.../item.aspx?...office...prosecutor...court+opens+its+first+investigatio.. (accessed 31 October 2016).
628 ICC-OTP, Policy Paper on Preliminary Examinations (1 November 2013) Executive summary at paras 12 and para 35.
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others disappeared or chose to leave Bunia. UPC soldiers also committed large-scale rape in the different areas of the town, sometimes abusing girls as young as 12.
The team received reports of 18 cases of rape, some of the victims being as young as 11, committed by UPC soldiers after the ceasefire was signed. Most of the victims were abducted while they were out to look for food or water, and were taken to military places or private houses for sexual abuse.
During those two periods, the MLC and RCD-N forces, although under different command, committed serious human rights abuses such as summary executions, systematic rape, systematic looting and acts of cannibalism. After Mambasa, similar abuses were also systematically carried out in the villages south of the town and between Komanda and Eringeti, with the involvement of UPC. The number of rape cases — mainly young girls or women between 12 and 25 years old — also rose to an alarming level.629
Although there was evidence that the UPC had committed SGBCs, the Prosecutor chose to charge its President, Lubanga solely with the crime of conscripting, enlisting and using child soldiers under the age of 15 to participate actively in hostilities, without establishing whether SGBCs could be linked to Lubanga.630
Luis Moreno-Ocampo’s initial reason for charging Lubanga solely with the crime of conscripting, enlisting and using child soldiers was to avoid a ‘possibly imminent release’ from the DRC’s custody. Lubanga had been in the custody of the DRC authority for nearly a year before his transfer to the ICC.631 Interviews given by ex-prosecution investigators, however, state otherwise. After a year and a half of probing Lubanga, these investigators were instructed to
‘focus solely on the use of child soldiers’, although they had also found evidence of rape, enslavement, torture and pillage.632 The investigators suggested that the reason for such instruction was that the investigations were taking too long and that prosecutors were under pressure to start cases.633 Luis Moreno-Ocampo had notably stated that he was prepared to add further charges if there was sufficient information and evidence to do so.634 The letter from the
629 Letter dated 16 July 2004 from the Secretary-General addressed to the President of the Security Council: Special report of the events in Ituri January 2002 to December 2003,UN Doc. S/2004/573 (16 July 2007), paras 37, 80 and 108 available at https://digitallibrary.un.org/record/527418/files/S_2004_573-EN.pdf (accessed 14 July 2018),
630 Prosecutor v Thomas Lubanga Dyilo ‘warrant of arrest’ (10 February 2006) ICC-01/04-01/06.
631OTP, Report on activities performed during the first three years at 8 and 12. James A Goldston ‘More candour about criteria, the exercise of discretion by the Prosecutor of the International Criminal Court’ (2010) 8 Journal of International Criminal Justice 383 at 394.
632 Katy Glassborow ‘Special Report: Sexual violence in DRC, ICC investigative strategy under fire’ available at https://iwpr.net/global-voices/icc-investigative-strategy-under-fire (accessed 31 July 2018).
633 Ibid.
634 Prosecutor v Thomas Lubanga Dyilo ‘Prosecutor’s information on further information’ (28 June 2006) ICC- 01/04-01/06, para 2. FIDH ‘The Office of the Prosecutor of the International Criminal Court nine years on: Analysis of the prosecutorial strategy and policies of the Office of the Prosecutor (2003 -2011) recommendations to the next
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Secretary General, which was based on a report from the United Nations Organisation Mission in the DRC, contained sufficient evidence for a preliminary examination into these crimes to have concluded that the UPC, of which Lubanga was President, carried out SGBCs. The Prosecutor would then have been able to establish whether there was sufficient evidence which linked Lubanga to the crimes committed by the UPC. Other statements from the Prosecutor did not revolve round the prosecution not being able to obtain sufficient evidence to prosecute Lubanga for SGBCs. When the Prosecutor later stated he was willing to investigate crimes other than what was charged, these crimes did not include SGBCs committed in armed conflict, but ‘allegations related to the intentional direction of attacks against the civilian population, murders committed during and after these attacks, the pillaging of towns and places, and ordering the displacement of the civilian population’.635 This shows that SGBCs continued to be marginalised, even though there was evidence that may have linked Lubanga to SGBCs. The Prosecutor also informed the ICC that he was not going to bring further charges against Lubanga, as amending the charges would add to the difficulties of providing adequate protection for the victims and witnesses. In addition to this, the Prosecutor stated that it would delay the proceedings, thereby prejudicing the right of Lubanga to be heard without further delay.636 The Prosecutor at a much later stage stated that he did not bring any charges for SGBV due to the small scale of the pre-trial investigations, the insufficient evidence, and the opportunistic nature of the crimes.637 It appears that the OTP was focused on the likelihood of success in prosecuting Lubanga for enlisting and conscripting children, despite the wealth of evidence that the UPC committed SGBCs. The ICC’s then Deputy Prosecutor, Fatou Bensouda, stated that the child soldiers’ case against Lubanga was a very strong one, and that they were comfortable with the evidence on this charge.638 As will be observed in chapter 4, although the Prosecutor had many opportunities to amend the charges to include SGBCs in proceedings before the ICC, he refused to do so. In its prosecutorial strategy report, the Prosecutor’s office stated that it relied on a focused approach in its investigations and International Criminal Prosecutor’ (December 2011) at 11 available at https://www.fidh.org/IMG/pdf/cpiproc579ang.pdf (accessed 1 November 2016).
635Prosecutor v Thomas Lubanga Dyilo ‘Prosecutor’s information on further information’ (28 June 2006) ICC- 01/04-01/06, paras 3, 7 and 9.
636 Idem.
637 Redated version of confidential letter submitted to the Office of the Prosecutor, written by Brigid Inder to Luis Moreno Ocampo. See also interview, the ICC’s deputy Prosecutor, Fatou Bensouda, Interview with Fatou Bensouda, ICC Deputy Prosecutor (2009) available at www.ijmonitor.org/.../interview-with-fatou-bensouda-icc-deputy-
prosec... (accessed 10 March 2016).
638 Interview, the ICC’s deputy Prosecutor, Fatou Bensouda, Ibid,
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prosecutions. By this, it ‘adopted a policy of focusing its efforts on the most serious crimes and on those who bear the greatest responsibility for these crimes.’639 The aim of the focused approach was ‘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 incident and the main types of victimisation’.640 Adopting a focused approach in the Lubanga case resulted in the non-prosecution of SGBCs. However, just as crimes of conscripting, enlisting and using child soldiers come within the class of crimes which are the ‘most serious crimes of concern to the international community’,641 so also are crimes of SGBV. The crime of conscripting, enlisting and using child soldiers, as a ‘sample’, was not representative of the SGBV crimes by Lubanga as the leader of the UPC and his troops;
neither did they represent the harm committed to victims of SGBV.642
The Prosecutor, made a choice similar to that in the Luganda case in the case against Bosco Ntaganda, by narrowing the charges against Ntaganda when he applied for an arrest warrant. Ntaganda was initially charged with conscripting, enlisting and using child soldiers under the age of 15 to participate in hostilities.643 A second warrant of arrest, issued six years later contained charges of rape and sexual slavery as war crimes and crimes against humanity.644 In the case against Dominic Ongwen, the commander of a rebel group known as the Lord’s Resistance Army (LRA) in Uganda, the Prosecutor brought 70 counts of war crimes and crimes against humanity, against him.645 Eighteen of these counts were crimes related to SGBV, such as forced marriage, rape and sexual slavery, thus indicating the current Prosecutor’s willingness to charge SGBCs where evidence of these crimes exists. The move away from bringing charges within a narrow scope is proof that the current Prosecutor is fulfilling her aim
‘to represent as much as possible the true extent of the criminality which has occurred within a
639 OTP, Report on Prosecutorial Strategy (14 September 2006) at 5 – 6, available at https://www.icc- cpi.int//Pages/item.aspx?name=otp-rep-strategy-2006 (accessed 1 November 2016). Prosecutorial Strategy 2009- 2012 (1 February 2010) at 6 available at https://www.icc-cpi.int//Pages/item.aspx?name=otp-rep-strategy-2010 (accessed 1 November 2016). OTP, Report on activities performed during the first three years at 7.
640 Ibid. Ibid. Ibid.
641 Rome Statute, preamble and art 5(1).
642 FIDH ‘Statement on the Prosecutorial Strategy of the Office of the Prosecutor of the International Criminal Court, 26 September 2006’ available at https://www.fidh.org/ (accessed 1 November 2016).
643 Prosecutor v Bosco Ntaganda ‘warrant of arrest’ (22 August 2006) ICC-01/04-02/06. FIDH ‘The Office of the Prosecutor of the International Criminal Court nine years on’ at 12.
644 Prosecutor v Bosco Ntaganda ‘Decision on the Prosecutor’s application under article 58’ (13 July 2012) ICC- 01/04-02/06, para 5.
645 Situation in Uganda ‘Warrant of arrest for Dominic Ongwen’ (8 July 2005) ICC-02/04, para 10.
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given situation, in an effort to ensure . . . that the most serious crimes committed in each situation [do] not go unpunished’.646 It is also proof that her office is taking into consideration ‘crimes that have been traditionally under-prosecuted, such as. . . rape and other sexual and gender-based crimes’.647