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* Excerpts from an Op-ED published in the Jamaica Gleaner on 11 April 2010 at http://www.jamaica-gleaner.com/gleaner/20100411/focus/focus5.html

“An interesting aspect of the history of the Statute of the International Criminal Court (ICC) is that, although the idea of an international criminal court was raised from as far back as the period after World War I, the modern genesis of the topic was a proposal made in 1989 by Trinidad and Tobago at the General Assembly of the United Nations. [...] When the item was introduced in 1989 by Trinidad and Tobago the reception in the Sixth Committee and the General Assembly was lukewarm. But when the Yugoslavia conflict broke out in 1991 the Europeans came aboard and pressed for the establishment of an international criminal court.

[...] The ICC Statute, adopted in 1998, has now been ratified by 110 States. Within the Caribbean the Statute has been ratified by Trinidad and Tobago, Antigua and Barbuda, Barbados, Belize, Dominica, Guyana, St. Kitts and Nevis, St. Vincent and the Grenadines and Suriname. In 1998 I signed the Final Act on behalf of Jamaica and in 2000 Jamaica signed the Statute, but has not yet ratified it. Nor has Bahamas, Grenada, St. Lucia.

I suggest three reasons for Caribbean States to ratify the Statute of the ICC.

First, the main purpose of the Court is to ensure that serious breaches of international criminal law and international humanitarian law do not go unpunished. We in the Caribbean have a history that has made us all to familiar with impunity in respect of atrocities that today would readily qualify as crimes against humanity. The inhuman and degrading practice of slavery carried out in the West Indies for over two centuries should prompt all Caribbean countries to support an institution whose primary function is to put an end to impunity for serious crimes.

Second, a cornerstone of the Court’s Statute is international human rights, including the protection of the rights of the accused. Caribbean countries have always been at the forefront in the struggle for human rights and have a strong history of valuing human rights. We are not new to the business of defending human rights. Jamaica was among the first set of countries, if not the first, to enact legislation imposing trade sanctions against apartheid South Africa. [...] The Caribbean Westminster Model Constitutions provide for the protection of fundamental human rights, including the rights of the accused. Generally, the Caribbean can take pride in the system of parliamentary democracy that it has followed over the last five decades. Moreover, Caribbean countries, which have fought for their independence, and therefore, value their sovereignty, need have no fear of the I.C.C.

The greatest contribution that the ICC has made to the international community is the principle of complementarity entrenched in its Statute. The Court will only exercise jurisdiction where a national state is unwilling or unable to do so. Therefore, we can continue to deal with serious crimes within our own countries. But joining the ICC will allow us to be more engaged in the international legal and diplomatic community, working together to prosecute the most serious crimes in countries where the rule of law is lacking and rogue leaders fragrantly violate human rights. Caribbean countries were once the scene of the most horrifying human rights abuses known to humanity, and it is therefore, our historical and moral responsibility to do whatever we can to make sure that the darkest chapters of human history are not repeated on other shores and in other lands. [...] ”

Judge Patrick Robinson is the current President of the United Nations International Criminal Tribunal for the former Yugoslavia (ICTY)

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The International Day against the Use of Child Soldiers is a special commemoration highlighting the fate of children who were forced to join armed forces and groups. The ICC trial against Congolese warlord, Thomas Lubanga, accents this tragedy. Lubanga is accused of using children under the age of fifteen to participate in the Ituri conflict which occurred in 2002-2003.

The impact of Lubanga’s trial is being felt in the Democratic Republic of Congo (DRC), one year later. Examples of these effects are seen in the Eastern DRC where soldiers are hesitant to recruit child soldiers into the ranks; however a lot of work still remains to fully eradicate this phenomenon. The use of child soldiers in the DRC began in 1997 by the Alliance des forces démocratiques pour la libération du Congo (AFDL), with the first child solders called ‘Kadogo’.

I was recently in touch with a number of former child soldiers in Bunia, Mahagai and Ndrele, who were rejected by society as a result of the heinous crimes they committed while under the influence of drugs, but are now happy to be considered victims instead. Many are hopeful that they will somehow be able to gain their childhood back through reparations. However, a number of them, especially the girls aged below eighteen who were used as sexual slaves, feel abandoned and have denied the ‘victims’ status but call for ‘sexual violence’ charges to be added to Lubanga case.

It is crucial that the International Criminal Court considers these “forgotten peoples”, and takes on the challenge of addressing the slowness of proceedings in order to efficiently fight the use of child solders and impunity in the DRC.

Yuma Malaika Gracia, Programme Officer, Women and Children Programme for the Congolese NGO Ligue pour la Paix et les Droits de l’Homme (LIPADHO).

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The day the trial of Thomas Lubanga resumed at the International Criminal Court (ICC) on 7 January 2010 was marked by the testimony of Radhika Coomaraswamy, the UN secretary general’s special representative for children and armed conflict. During her testimony, Coomaraswamy reminded ICC judges that with regard to defining “child soldiers” it is important to not make a distinction between children who participated actively in hostilities and children who played an indirect role. As Coomaraswamy underscored: “Girls play multiple roles in conflict, including combat, portering, scouting but also [there is] sexual slavery and [they are] bush wives….we need to draw attention to the roles girls play and the need to protect them in every context.”

Child soldiering, one of the central elements in the Court’s first-ever trial is a very complex concept that reveals a gap between the practice of child soldering and the rules and regulations of the ICC and international justice norms more broadly.

The concept of “child soldiers” is not new; it dates back more than a century.

According to the principles of the Convention on the Rights of the Child, the definition of “child soldier” -a definition widely recognized by experts in the field-stipulates that “any person under 18 years of age who is part of any kind of regular or irregular armed force or armed group in any capacity, including but not limited to cooks, porters, messengers and anyone accompanying such groups, other than family members. The definition includes girls recruited for sexual purposes and for forced marriage. It does not, therefore, only refer to a child who is carrying or has carried arms.”

In addition, the concept of children associated with armed forces and groups aims to include not only child soldiers but all children directly or indirectly implicated in the activities of armed forces and armed groups. Yet this concept is not a part of the Rome Statute. In fact, although the use of child soldiers is recognized as a war crime under Article 8 of the Rome Statute, its definition does not indicate other categories of child soldiers that do not “actively participate in hostilities.”

It is true that children serve armed forces and armed groups in different ways: as foot soldiers, body guards, informants, witch-healers, cooks and so on. Some are trained to handle more than one task at a time (e.g. combatant and cook) while for a more limited number of children, their role is restricted to one of function (e.g. sexual slave). The recruitment of child soldiers thus takes on many forms, one of which is the sexual exploitation of girls.

This is why, in practice, the distinction between active participation and non-active participation in hostilities is exceptional and very rare. It is hard to find a child in an armed force or armed group that could not become a soldier.

Given the complexity of defining what we mean by “child soldiers,” any discussion ought to take place within the realm of practical not theoretical considerations.

Bukeni T. Waruzi is an expert on child soldiers with WITNESS where he is Program Coordinator for Africa and the Middle East.

Translation is informal and provided by CICC Secretariat.

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The International Criminal Court (ICC) handed down an Appeal Judgment this afternoon that effectively excludes crimes of sexual slavery and inhuman treatment from the on-going trial of rebel leader Thomas Lubanga, from Ituri, Democratic Republic of Congo (DRC).

Thomas Lubanga is on trial in The Hague for recruiting and actively using children under 15 years as soldiers in his rebel group, the UPC, during the conflict in North Eastern DRC in 2002-3. However, it is widespread knowledge that girls were also recruited and used by rebel groups, including the UPC, as soldiers as well as sex slaves or “wives”. “They have the added burden of cooking, cleaning and sex service on top of soldiering,” clarified one witness during the on-going trial.

Girls as young as 11 were kidnapped brought to camps and allocated to commanders who systematically and brutally abused them. “Commanders would get them pregnant, and these girls had to leave the camp and go to the village” explained another witness. Girl victims have testified in closed sessions due to their extreme vulnerability.

Through the ICC’s innovative procedure, which has allowed 97 former child soldiers to be represented in the Court process, victims’ lawyers filed an application trying to have sexual slavery and inhuman treatment recognised as part of the case. This would begin to break the silence about the use of girls by rebel groups and it would also allow girls to benefit from reparation that the ICC and its pioneering Trust Fund for Victims might award if there is a conviction. If this trial is about the active use of children in hostilities, it must recognize the experience of girls. It is a shame the Prosecutor failed to include sexual violence charges from the outset. Nonetheless, there should be a mechanism to modify the scope of the prosecution if facts come to light during the trial, as they have here.

By Mariana Goetz
Program Adviser, REDRESS

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Raj Kumar Siwako is the Secretary General of FOHRID, Human Rights and Democratic Forum in Kathmandu, Nepal. fohrid@wlink.com.np

Today, on 17 July 2009, representatives of the human rights community organized a peaceful sit-in program on the occasion of the International Justice Day and 11th anniversary of Rome Statute for 45 minutes today at Shantibatika, Ratnapark (Katmandu, Nepal). Participants of the sit-in, organized by Citizen’s Task Force to Combat Impunity, criticized the government for not acceding to the Rome Statute, especially given that the then-reinstituted Parliament passed a resolution to accede on 25 July 2006. NGOs present were vocal in their demand for the Government of Nepal to join the International Criminal Court at once as part of larger effort to establish a just society.
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The Lubanga trial in The Hague at the International Criminal Court (ICC) marks a fundamental turning point for international justice in the fight against impunity. The plight of child soldiers has been one of the serious concerns of the international community.

In the DRC, the issue of child soldiers has a been central concern for the Congolese government during the past decade. The first national law protecting children has just been adopted by the parliament in June 2008.

The Lubanga trial evokes mixed feelings in the Congo among human rights activists and local communities, including children. Many agree that the it is an unprecedented step, but others point out that peace has not come yet.
It is clear that for many people, there’s still a long way before they see peace and feel security: militias are still operating across the eastern part of the country, hundreds of children are reportedly recruited by armed groups despite the fact that Lubanga is at the trial.

This is an indication that people should have realistic expectations; the clear indicator of the impact of the Lubanga trial is the cessation of child recruitment by any parties in conflict in the DRC. But why are children still at risk of recruitment as child soldiers in the eastern DRC?
I think there are many reasons to explain this:
1. People still don’t make the connection between Lubanga and the crimes with which he’s charged: the priority is given to security over justice. Children in war zones being easy prey, they’ll be at risk.
2. Lack of trust in the ICC to be an independent justice institution: People still see the ICC as a western court, and Lubanga is being prosecuted as a scapegoat–at least according to some communities in or from Ituri and even outside Ituri.
3. The lack of domestic capacity to incorporate ICC crimes: although the DRC has a law protecting children against any abuses, domestic institutions are still too far behind to lead the fight against impunity.
4. The political climate is passive: there’s still a mentality of acquiring political power by military power.

Justifying the crimes for which Lubanga was arrested remains a hard sell for the Court’s outreach to local populations. The concept of a hierarchy of crimes remains in people’s minds. People still don’t feel the impact of child soldiering; in the Court’s outreach, it should be made clear that the impact is beyond the single child or his family. The duty to protect the child is not the sole responsibility of just his family or community, it is a duty for all people and institutions, and it is in that capacity that the ICC has the mandate.

The Lubanga trial should have given any child the hope that change is coming into their life. Human rights activists would agree that the Lubanga trial is the result of the engagement of the international community to hear the voices of the voiceless in the call for justice, but also we can agree that there’s a long way to go to achieve peace.
For the children, I think they would agree also that the International Criminal Court has given them the opportunity to use the power of their story, the power of their testimony, their experience to demand and obtain justice.
This is not yet concrete but in the few weeks or months ahead, this may well become a reality.

Bukeni T. Waruzi is a filmmaker and expert on child soldiers with WITNESS where he is Program Coordinator for Africa and the Middle East.

Watch the documentary video “The Lubanga Trial at the ICC” co-produced by Open Society’s Justice Initiative and WITNESS to inform the public about the trial here.

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The Lubanga trial might have a dampening effect on the rampant impunity we see here in the Congo. I am elated to see that “enemies of the human race” are finally being held accountable for their actions before international judicial institutions.

For far too long, far too many of my compatriots in the DR Congo have behaved like entitled kings without any fear of consequence and this fact is most unjust. And although the ICC aims for those deemed most responsible, we are only chipping away at the problem of impunity.

The international community should help Congolese civil society in its quest to pass the national law implementing the Rome Statute without delay. This law can address perpetrators of crimes falling outside the ICC’s jurisdictional boundaries.

I have always held close the memory of those viciously killed before the Rome Statute’s entry into force. It is in their name and the name of their beloved families that we in the Congo seek justice. My most profound hope is that I plead for help—and pressure—for our country so that we can try those criminals beyond the ICC’s jurisdiction, especially high-ranking government officials.

Delly MAWAZO SESETE is the Executive Director of the Research Center on Environment, Democracy, and Human Rights (Centre de recherche sur l’Environnement, la Démocratie et les Droits de l’Homme/CREDDHO) which advocates for peaceful co-existence, good governance, and human rights in the Democratic Republic of the Congo.

Translation from the French is informal and provided by the CICC Secretariat

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Co-authored by Sylvestre Saïdi with contributions from the Canadian human rights organization, JDH. Excerpts from 7 May 2009 article published in Congolese newspaper ‘Le Phare’, http://www.lepharerdc.com/www/index_view.php?storyID=8628&rubriqueID=13

[Informal translation]

“…In Bunia, the local population generally feels that the Court is not communicating enough despite the fact that a section of the Trust Fund for Victims is represented here. « The Hague-based ICC only reaches a few persons within a limited perimeter and its message is not relayed on the ground. Our partnership with the Court is more verbal than practical, and yet without NGOs, the ICC cannot properly fulfill its mission, as it was created for the victims», accuses Angbandia [Gilbert Angbandia, focal point for the national Coalition for the ICC]. In his statement, he alludes to the importance of “intermediaries,” a term that often applies to NGOs because they serve as an interface between the victims and the Court itself. “The Court does not adequately consider our contribution to the fight against impunity which in the end aims to facilitate its work,” Angbandia continues. In addition, he says, the Court is responsible for a chronic “deficit of information” in Bunia about Court proceedings. Some local journalists who analyze the communications strategy of the Court’s field office in DRC echo this perspective: “We are given prerecorded communications tools that do not help raise awareness about the ICC among the broader public,” says Richard Pituwa, director of the local radio station known as “Canal revelation,” which boasts one of the largest audiences in Bunia. “There should be a way to first ask local opinions about the type of message to be sent and then create an outreach tool that reflects this feedback from the ground,” he says. “What we experience here is the exact opposite of this. Furthermore, the messages we often receive are in French. However, there have been some improvements over the past two years”, says this young reporter, who works for a media outlet known for its support for justice. «We have hosted representatives of the Court on our show many times and this helps get the message out, but greater effort is required,” explains Bitu, a co-worker at a local radio station. The Kinshasa ICC field office had no comment in response to this feedback…”

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