In March, the International Criminal Court (ICC) convicted Thomas Lubanga, a former Congolese rebel commander, for conscripting, enlisting and using children under the age of 15. The landmark judgment has stirred up events from the Eastern Democratic Republic of Congo (DRC) to the courtrooms in The Hague.
Bosco Ntaganda, a former top commander of Lubanga's UCP/FPLC, was also indicted for child recruitment and use by the ICC in 2006. In 2009, Ntaganda became a general in the Congolese armed forces. He had circulating freely in Goma, North Kivu, until a few weeks ago. After the ICC's judgment in the Lubanga case, Ntaganda went into hiding in the Virunga National Park, where he is allegedly protected by a group of loyalists who recently defected from the Congolese army. The ensuing troop movements have caused widespread insecurity in the Kivu provinces, displacing whole villages and causing thousands of women, men and children to seek refuge across the border into Rwanda, Uganda and Burundi. There are also new reports of forced recruitment of child soldiers by Ntaganda's men.
As a State Party to the Rome Statute of the ICC, the DRC has to cooperate fully with the Court and transfer Bosco Ntaganda promptly to The Hague. The Congolese authorities have failed to do so for nearly six years, but in a recent policy shift, the Congolese president, Joseph Kabila, stated his intention to arrest Ntaganda.
As the man-hunt progresses in the dense forests of the Eastern DRC, the Lubanga judgment also resonates in The Hague. Luis Moreno-Ocampo, ICC Prosecutor, announced new charges against Ntaganda. The list now includes crimes against humanity as well as the war crimes of murder, persecution based on ethnic grounds, rape and sexual slavery, intentional attacks against civilians and pillaging. These additional charges are based on evidence presented during the Lubanga trial concerning acts committed by the UPC/FPLC in 2002-2003.
The Prosecutor's announcement indicates an important shift in the treatment of sexual violence by the ICC. In the Lubanga case, the prosecution limited the charges to the recruitment and use of child soldiers, even though there was ample evidence of sexual slavery and rape -- acts that could constitute separate charges under the ICC's Statute. These crimes were instead presented as gender-specific elements of the recruitment and use of children in hostilities. In the Lubanga case, the prosecution argued that recruitment and use of children ought to be interpreted broadly. Children associated with armed forces or groups are not only frontline combatants, but also porters, cooks, cleaners and, importantly, girls abducted and used as "bush wives."
In the Lubanga judgment, the Trial Chamber indeed adopted a broad interpretation of child recruitment in a welcome departure from previous international jurisprudence. Nonetheless, the exclusion of charges related to sexual violence restricted the judges' ability to examine Lubanga's individual criminal responsibility for such acts. The judgment thus failed to render justice for victims of rape and sexual violence, a problem raised by women organizations and acknowledged by Judge Odio Benito in her dissenting opinion in the Lubanga judgment.
Ocampo's recent decision to add separate charges on sexual violence against Ntaganda is a promising move. It may give voice to the many Congolese women and girls, abducted, raped and used as sexual slaves by their "commanders." Just as the Lubanga case gave a voice to victims of child recruitment and use, the Ntaganda case may be the long-awaited pulpit for the victims and courageous survivors of sexual violence in the DRC.