…The inclusion of gender-based evidence in sentencing Lubanga is crucial for many reasons.
First, the admission of such evidence raises the awareness of the prevalence of sexualized violence in conflict zones. Sexualized violence committed in conflict has notoriously been overlooked throughout history, particularly in the realm of international justice. The judicial legacy of the war crimes trials at Nuremberg was virtually silent on gender-based crimes. It took more than 50 years of digging up historical accounts to lift the veil of silence to reveal the sexualized violence committed against Jewish women during the Holocaust. Similarly, at the International Criminal Tribunal for Rwanda, the first indictment before the court in the case against Jean-Paul Akayesu—a Rwandan mayor who did nothing to prevent the rape and murder of his citizens and even orchestrated particular killings—did not include any charges of sexualized violence despite the fact that evidence and witness testimony revealed systematic rape of women during the genocide. Judge Navanetham Pillay, the only female on the three-judge panel, pointed out the omission and urged the chamber to add charges of sexualized violence to the indictment. Because of her efforts, the case went down in international legal history as the first one to prosecute and convict for rape as an act of genocide.
Second, the admission of gender-based evidence protects against future invisibility of girl child soldiers under the law. These “soldiers” experience a unique set of gender-based crimesthat often are not encompassed within the ordinary definition of conscription of child soldiers under the Rome Statute of the ICC. Judge Odio Benito, in her separate and dissenting opinion, recognized that by not including sexualized violence and gender-based crimes within the legal concept of conscripting minors for “use to participate actively in the hostilities,” the courthad discriminated against girl child soldiers.
“Invisibility of sexual violence in the legal concept leads to discrimination against the victims of enlistment, conscription, and use who systematically suffer from this crime as an intrinsic part of the armed group,” Benito said.
Finally, admission of gender-based evidence ensures a proper reparations scheme for victims that, according to the Rome Statute, may include restitution, compensation, and rehabilitation, among other things. Reparations for child soldiers must include a gender perspective in order to better address the disparate effects of crimes committed against boy and girl soldiers. The Women’s Initiative for Gender Justice pointed out in their observations on reparations that even in the case of similar crimes committed against boy and girl child soldiers, the resulting trauma may include different dimensions for girls.