Child Soldiers in Syria

Written by Garima Tiwari

“If the men are gone, our children are present.”[i]


After the death of his mother and his father’s disappearance 5 years ago, Shaaban Abdullah Hamid, aged 12 years, spent several years in the streets or doing casual jobs at a plastic factory. An uncle of Shaaban presented the boy with a handgun and offering him a job as a soldier for the Islamist group Afhad al-Rasul. The training lasted one month, after which the boy spent the following two months sniping at people walking or driving on an Aleppo bridge. Killing a civilian brought him $2.5, and killing a government soldier, $5. Working an 8-hour shift, he killed a total of 13 civilians and 10 soldiers. His firing position stayed warm round the clock, because two other boys worked the remaining two shifts. Shaaban also executed delinquent or offending rebels several times, doing so on orders from his uncle. In the end, his father got word of him and took him to a Red Crescent refugee camp in Hama. From there, both moved to Tartus to take up farming jobs. Asked about any emotions in connection with his sniping, he said he had none. [ii]  Continue reading

Sound Sentencing? Aggravating Factors in Lubanga

Written by: Regina Paulose

Hidden deep within the Rome Statute and the ICC Rules of Procedure of Evidence (RPE) are the sentencing guidelines for the ICC. These articles receive very little attention. This is most likely because there has been only one case which has reached the sentencing phase at the ICC. How the Chamber interprets aggravating factors and the challenges that lay ahead in the use of aggravating factors is the focus of my article this month. Continue reading

Reflections on Victims Participation in the Lubanga Judgment

By: Goldah Nekesa Matete*

On 14 March 2012, Thomas Lubanga Dyilo (“Lubanga”) was convicted of committing, as co-perpetrator, war crimes consisting of enlisting and conscripting of children under the age of 15 years into the Force patriotique pour la libération du Congo [Patriotic Force for the Liberation of Congo] (FPLC), and using them to participate actively in hostilities in the context of an armed conflict not of an international character from 1 September 2002 to 13 August 2003 punishable under article 8(2)(e)(vii) of the Rome Statute (”Statute”).[1] Trial Chamber 1 (“Trial Chamber”) of the International Criminal Court (“ICC) rendered the unanimous judgement with two judges issuing separate dissenting opinions on some issues.

Article 68 of the Statute makes provision for the protection of the victims and witnesses, and their participation in the proceedings, at the ICC. The Statute effectively grants the victims the locus standi to take an active part in the proceedings as individual legal persons.

In the Lubanga trial there were a total of 129 victim participants authorised by the Chamber, 34 of which were female and 95 were male.[2] The Chamber divided the victim participants into two groups, each one represented by a Common Legal Representative.[3] In addition the Chamber authorised the Office of Public Counsel for Victims (OPCV)[4] to represent four more victims.[5]The 129 victims participated in the proceedings by introducing evidence, questioning witnesses, and advancing written and oral submissions.[6]

Following the victims’ application for participation in the proceedings, the Trial Chamber issued a decision (Judge Blattman separately and partially dissenting)[7] allowing them to participate in the proceedings even though some did not have official documents of identification.[8]This decision was appealed before the Appeals Chamber, mainly concerning the issue of victims producing formal identification before being authorised to participate in the proceedings. The Appeals Chamber partially reversed the decision, holding that the applicants could prove their identity by way of a range of official and non-official documents, based on the situation in DRC Congo and potential difficulties in obtaining and producing official copies of identity.[9] The Appeals Chamber further held that:

(i) a victim is someone who experienced personal harm, individually or collectively with others, directly or indirectly, in a variety of different ways such as physical or mental injury, emotional suffering or economic loss;[10](ii)  participation by the victims must be in accordance to the provisions of Rule 89(1)[11] of the Rules; (iii) the applicants must demonstrate a link between the harm they suffered and the crimes faced by the accused;(iv) the applicants should demonstrate in written application that they are victims of these offences,[12] and that their personal interests were  affected.[13]

The Appeals Chamber also gave the victims’ the rights: to consult the record of the proceedings, including the index subject to confidentiality restrictions; to receive notification of all public filings and those confidential filings which concern them; to request the Chamber to use its broad powers to call all the materials it considers relevant for the determination of the truth; to participate in public hearing;  to file written submissions, and a right for anonymous victims to participate in the proceedings.[14]

The Chamber granted all 129 applicants the right to participate in the proceeding. All the applicants claimed to have suffered harm, either as a result of, the crime of enlisting and conscripting children under the age of 15 into the FPLC, or their use to participate actively in the hostilities, and others as a result of sexual violence,[15]torture and other forms of inhuman treatment which are not subject of the charges against Lubanga.[16]

Most of the victims were former child soldiers, although some are parents, or relatives of former child soldiers, and one is a school.[17] Some children were also granted rights to participate directly without an adult or legal guardian representing them.[18]Most of the victims in this case were provided with protective measures, in particular, anonymity, because of their vulnerable position living in areas of ongoing conflict.[19]Out of the total 129 victims, only 23 have been disclosed to the parties in the proceedings.[20] The Chamber also granted some victims dual status of victim and witness,[21]ruling that dual status persons do not accrue rights above and beyond those who are solely victims or witnesses.[22] The four victims represented by the OPVC were dual status victims; three gave evidence as witnesses during the trial on behalf of the School.[23] These three witnesses were provided in-court protective measures that included voice and face distortion and pseudonyms.



The Rules of Procedure and Evidence (“Rules”) of the ICC provide for a definition of victims as ‘natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court.”[24]Victims may include organizations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes and to their historic monuments, hospitals and other places and objects for humanitarian purposes.”[25]

The definition provided by the Statute restricts the of ‘victims’ to only those that have suffered harm as a result of the crimes charged; there must be a causal connection between the alleged crimes and the harmful results.[26]However the Chamber in its judgement relied on principle 8 of the “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Lawas adopted and proclaimed by the General Assembly Resolution 60/147, to propoundabroad definition of the meaning of “victim.” The adopted definition reads as follows: “[s]omeone who experienced personal harm, individually or collectively with others, directly or indirectly, in a variety of different ways such as physical or mental injury or emotional suffering or economic loss.” Inthe same vein, the Chamber gave rights to former child soldiers, parents, a school, relatives and legal guardians.[27]It is instructive to note that the Chamber treated the child soldiers as victims and not participants in the crime at this point, and persons who suffered under the hands of the victims were not considered victims within the set out definition of the Trial Chamber.[28]

This chosen definition broadens the characterization of victims to include those who were not directly harmed but suffered the damage as third parties. It has been argued elsewhere[29] that this is a correct approach in light of the huge collateral impact of international crimes on third persons and their immense emotional and psychological suffering. However, such a broad approach requires a comprehensive strategy to limit the number of indirect victim participants. Some scholars like Stefanie Bock suggest that indirect victim participants should in addition demonstrate the personal relationship between themselves and the direct victim, as well as provide evidence demonstrating the extend of emotional or physical harm they have suffered.[30]

It appears that the prosecution focused on the definition provided for in the Rules in charging Lubanga, hence the focus on the crime of enlisting and conscription of child soldiers, and entirely leaving out sexual offences crimes, which had a great number of victims who suffered as a consequence of the crime of enlisting and conscription of children under the age of 15 into FPLC.[31] It is indeed worth noting that the Chamber exercised its discretionary powers in allowing persons to participate in the proceedings as victims, and even then, it failed to confine itself to the strict definition of victims resulting in the broad range of person who participated as victim participants.[32]

During the Confirmation of Charges hearing, the Pre-Trial Chamber in assessing the application for victim participation did so, on a prima facie basis in consideration of the provisions provided in the Rules,[33] and not on the known legal threshold of “beyond reasonable doubt”which requires a high standard of proof. This is because, at the time of confirmation of charges hearing, it is not clear whether the alleged crimes have actually been committed by the accused or not, since the standard applied to refer a case to the Trial Chamber is on a prima facie basis.[34]

Some of the witnesses (witness P-0007, P-0008, P-0011 and P-0298) who were granted permission to participate in the proceedings,[35] as the information at that time, was sufficient to establish on a prima facie basis that they were victims,[36] lost their right to participate in the proceedings when the majority of the judges sitting on the case came to the conclusion that they were not reliable and they did not give accurate information to the Chamber.[37] Similarly the Chamber withdrew the right of P-0298 to participate in the proceedings while he had initially been permitted to as an indirect victim based on the information that his son had been recruited as a child soldier.[38] The Chamber withdrew his right to participate in the proceedings after hearing evidence that his son had in fact not been recruited as a child soldier. The Chamber, in my view, failed to correctly distinguish the roles played by dual status victim witnesses, thereby, incorrectly withdrawing the right to participate in the proceedings of these victims by assessing their victim status on a “beyond reasonable doubt” standard.

Rightly so, the Chamber’s decision to grant a person rights to participate in the proceedings at the Pre Trial phase should not be final. If the Chamber in its further investigation concludes that its prima facie assessment was incorrect, it should discharge and or appropriately amend any earlier order as to the participation, to the extent necessary.[39] This approach strikes a balance between unnecessarily restricting victims’ admission to the proceedings and the defence interest not to be unduly laboured with participants who are not victims strictly speaking.[40]

However Judge Elizabeth Odio Benito was of a different opinion as regards taking away the right to participate of victims whose testimony as witnesses was contradictory. [41] She states with regards to the victim witnesses who testified, “[t]hat […] the contradictions and weaknesses of these two individuals as witnesses in the proceedings should not affect their status as victims with the right to participate in the trial proceedings.”[42] Judge Odio Benito was of the opinion that with respect to the dual status victim witnesses, and based on the fact that different standards of proof are adopted (i.e. in the case of witness testimony, the standard is beyond reasonable doubt to establish whether an accused is guilty or not whereas in the case of a victim, a prima facie standard is adopted) it is incorrect to adopt the beyond reasonable doubt standard in determining whether a victim should continue exercising their right to participate in the proceedings or not based on their testimony as witnesses.[43]She also points that it is unfair to impose upon individuals with dual status a higher threshold as regards their victim status, while all other victims participating in the proceedings have not been subject to thorough examination by the parties and the Chambers.[44]It is on this basis that she concludes that the inconsistencies in the victim witnesses’ testimony do not necessarily mean that their evidence as to being victims should not be relied upon.

In light of an examination of the Statute, Rules, Regulation, academic works and case law one can conclude that the first judgement of the ICC is not entirely satisfactory vis-a-vis the protection of the interests of victims and victim witnesses. Indeed it would seem the court failed to develop watertight jurisprudence to safeguard the rights of victims and in particular, victim child soldiers.

I submit that the first error made by the Bench sitting on this case was that it failed to critically examine and analyse most issues at the Trial stage and instead relied heavily and sometimes almost entirely on the Confirmation of Charges Decision. This led to subsequent mistakes in the final decision. For instance, protection regimes adopted for victims were not addressed again at all at the trial stage and the Trial Chamber adopted in toto the position which was taken by the Pre Trial Chamber ruling out an independent legal and factual analysis on the same.

The Chamber’s choice to disregard the sexual violence crimes merely because they were not included by the prosecution in the charges against the accused was a disservice to the victims of the crimes of which Mr. Lubanga was found guilty. I agree with Judge Odio Benito’s dissenting opinion that sexual violence and enslavement are illegal acts and are directly caused by the illegal crime of enlisting, conscription and the use of children under the age of 15 years. The ICC’s constitutive and procedural regime establishes a high standard for the protection of victims and witnesses and for the Court to give anything less than the high standards is impermissible. It would seem, from the said decision, that the court developed jurisprudence that limited its powers to punish crime and especially sexual crime that was proven beyond reasonable doubt to be committed, but where the prosecution in a most astounding error failed to include in its charges. Should the Court turn its back on clear and evident crimes committed that fall within its jurisdiction merely because the said crimes were not incorporated into the charges against an accused(s) person(s)? Certainly not. It is instructive at this stage to note that many countries around the world have criminal jurisdictions in their municipal laws that allow a court to punish lesser offences even when they were not incorporate in the charges but the same were proved during trial. The Trial Chamber could have incorporated this approach in this respect, since the Legal Representatives of Victims, severally raised the issue of sexual crimes during trial, and the Defence had a chance to provide rebuttal evidence. Should one argue that this would be prejudicial to the accused, then; an accuseds’ rights should not defeat justice and truth at any time or else it will be a sad day for justice, and especially to the victims who suffered the heinous crimes.

The Chamber is the custodian of the law and the interest of all parties involved in a trial. However, it does look like the Chamber was more aligned to protecting the rights of the accused as opposed to balancing the rights of all parties; it’s based on this that the Chamber treated victim witnesses as witnesses hence the taking away the rights of some of them to participate in the proceedings. As discussed above, I agree entirely with the sentiments put forth by Judge Benito regarding this issue and add that, fair trial should be that and nothing else, to apply different standard to a party in a trial is in itself a violation of the principle of fair trial.

One of my greatest concerns is the failure of the Chamber to offer a legal definition of active participation. The adopted ‘case by case’ approach shows that the Chamber did not simply want to engage in a conclusive discussion hence they opted to leave the definition open. This case was mainly focused on the concept of active participation, and not having a definition at the end of the judgement is unsatisfactory. The Chamber had a chance to set down a legal definition that would have gone into setting down the Courts jurisprudence on the same, but instead it opted to leave it for the future. The failure to have a definition in essence means none of the questions have been comprehensively answered, and in particular, whether child soldiers engaging in hostilities makes them active participant or not. It is understandable to protect them and categorise them under victims, but in so doing a comprehensive definition as well as an approach for future cases should have been made.

It is however very encouraging to note that the Trial Chamber sought and resolved to inculcate Victim Participation in the trial. I also applaud the Chambers for ensuring that the victims got a chance to participate actively in the Trial, and they had a chance to express their needs and interests to the Court.  A lot needs to be improved especially with respect to the numerous delays due to putting together relevant regimes for victim participation and the overall conduct of the trial. Since the law is a living instrument, then I have reason to be optimistic that jurisprudence in the afore-discussed paper shall develop towards a more appropriate system that will encourage victim participation in a more effective manner.



* Holds a Masters of Laws, (LL.M) degree in International Crime and Justice from UNICRI, a United Nations institute in Turin, Italy; a Bachelor of Laws (LL.B) from Moi University, Kenya, and a Post Graduate Diploma in Law from the Kenya School of Law. Goldah is also an Advocate of the High Court of Kenya. She currently works and resides in The Hague and can be reached at,

[1]Information retrievable on the International Criminal Court website at, last visited 14 April 2013.

[2]Prosecutor v Thomas Lubanga Dyilo,Decision on Victims’ Participation, 18 January 2008, (“18 January 2008 Victims’ Participation Decision”), para. 32.

[3]Prosecutor v. Thomas Lubanga Dyilo, Trial Judgement (“Lubanga Trial Judgement’’), 14 March 2012, para. 14; Kai Ambos, ‘The first Judgement of the International Criminal Court; A Comprehensive Analysis of the Legal Issues, (2012) (“Kai Ambos”).

[4]See more information on the OPCV at:; The manual at last visited on the 15 June 2013; Paolina Massida and Sarah pellet, “Role and Mandate of the Office of the Public Counsel for the Victims” in Carsten Stahn and Goran Sluiter (eds), The Emerging Practice of the International Criminal Court (Nijhoff, Leiden, 2009) 690; Regulation 80(2) of the Regulations of the Court;  Regulation 81 of the Regulation of the Court on the support role of the OPCV to the Legal Representatives for victims.

[5]Lubanga Trial Judgement, para. 32.

[6]This was done by the leave of the Chambers, Lubanga Trial Judgement, para.13.

[7] 18 January 2008 Victims’ Participation Decison, para. 32.

[8]18 January 2008 Victims’ Participation Decision,para. 14.

[9]Prosecutor v. Thomas Lubanga Dyilo,Judgement on the Appeals of the prosecutor and The Defence against the trial Chamber 1’s Decision on Victim Participation of 18 January 2008, ( “11 July 2008 Appeals Decision on Victim Participation”) 11 July 2008, para.

[10]Lubanga Trial Judgement, para. 14; The Trial Chamber , based on the Basic Principles and Guidelines on the Rights Law and Serious Violations of International Humanitarian Law Adopted by the United Nations General Assembly, Resolution 60/147, 16 December 2006, Principle 8.

[11] The Chamber in exercising its discretion, can reject the victims’ application to participate in the proceedings, or limit them to specific issues, or allow the application and give them rights including, to make opening and closing statements. In case where the application is rejected, a fresh application can be made following the same procedure by the victim; Rule 89(3).

[12]Lubanga Trial Judgement, para, 14.

[13]Lubanga Trial Judgement, para.14.

[14]Lubanga Trial Judgement, para. 14.

[15]30 victims (18 female and 12 male) referred to acts of sexual violence which they either suffered or witnessed; Lubanga Trial Judgement fn 54.

[16]Lubanga was only charged for the crime of enlisting and conscripting children under the age of 15. Sexual offences were not prosecuted and neither were torture and other forms of inhuman treatment charged.

[17]Lubanga Trial Judgement, para. 17.

[18]Prosecutor v. Thomas Lubanga Dyilo, Corrigendum to Decision on the applications by victims to participate in the proceedings, 13 January 2009, paras 67-72.

[19]Lubanga Trial Judgement,para. 18.

[20]Lubanga Trial Judgemtn, para. 18.

[21]18 January 2008 Victim Participation Decision, paras 132-134.

[22]Prosecutor v. Thomas Lubanga Dyilo, Decision on Certain Practicalities Regarding Individuals who have the Dual Status of Witness and Victims, 5 June 2008, para. 52.

[23]Prosecutor v. Thomas Lubanga Dyilo, Decision on the Request by Victims a/0225/06 and a/229/06 and a/270/07 to Express Their Views and Concerns in Person and to Present evidence during the Trial, 9 July 2009 (Public Document), paras 39-40; Lubanga Trial Judgement, para. 21.

[24]Rule 85(a).

[25]Rule 85(b).

[26]Kai Ambos.

[27]Prosecutor v Thomas Lubanga Dyilo, Redacted Version of Decision on “Indirect victims” ,Trial Chamber 1, 8 April 2009, para.52.

[28]Lubanga Trial Judgement , para.14.

[29]See Kai Ambos, p.2.

[30] Stefanie Bock, das Opfer Vordem International en Strafgerichtshof (Ducker &Humblot, Berlin, (2010) pp 446-      447.

[31]Lubanga Trial Judgement, para.16; See also note 15 above.

[32]Lubanga Trial Judgement, para.16.

[33]Lubanga Trial Judgement, para.15.

[34] Situation in the Democratic Republic of the Congo, Decision on the Application for the participation in the Proceedings, January 2006, paras 97-98; Prosecutor v. Thomas Lubanga Dyilo, Decision on the Confirmation of Charges, 29 January 2007, (“Lubanga Confirmation Decision”), paras 1,15.

[35]Prosecutor v. Thomas Lubanga Dyilo, Decision on the Application of victims to participate in the proceedings, 15 December 2008.(“ 15 December Decision on Victim Participation”)

[36] In accordance to, Rule 85 of the Rules.

[37]Lubanga Trial Judgement, para, 484.

[38]Prosecutor v. Thomas Lubanga Dyilo,Decision on the supplementary information relevant to the application of 21 victims, 21 July 2009, (“21 July Decision”) para.39.

[39]See for Example, Prosecutor v. Thomas Lubanga Dyilo, (“Lubanga Trial Judgement”), para485.

[40] See also Kai Ambos, p. 15.

[41]Prosecutor v. Thomas Lubanga Dyilo, Separate and Dissenting Opinion of Judge Odio Benito (hereinafter Judge Benito’s Dissenting Opinion attached to the Judgement, (“Judge Benito’s Dissent”) para.25.

[42]Judge Benito’s Dissent, paras 25-26.

[43]Judge Benito’s Dissent, para. 26.

[44]Judge Benito’s Dissent, para.35.

Unroll the War Drums, Change the Paradigm

By Ronald Rogo (

In October 2011 Operation Linda Nchi (Kiswahili for “Protect the Country”) was launched by the Kenya Defence Forces (KDF). Operation Linda Nchi was the code name for Kenya’s military incursion into southern Somalia. The ostensible goal of the military adventures was to crash and hopefully eliminate the threat posed by the Al Shabaab, a terrorist organization operating in Somalia and with reported links to the Al Qaeda terror group. The immediate cause of this unusual turn of events was the kidnapping of two Spanish aid workers working with the Médecins Sans Frontières, an international humanitarian organization, from the Dadaab refugee camp in Northern Kenya. It was alleged that this kidnapping was planned and executed by the Al Shabaab. With this military incursion, Kenya joined a growing list of countries that have used the war against terrorism as justification for waging ‘war’ outside their borders .

However, the war paradigm cannot be used as justification for a “war” against terrorism as it does not fit into any of the recognised legal categories of armed conflict. Instead, nations need to come up with another perspective when confronting terrorism that will both be tenable and legally justifiable. First, the UN Charter recognizes the right of a state to respond by force using its armed forces in cases of self defence. However, the initial attack must rise to the level where it causes “necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation” for the responding state. This means that the state must be put in a position where the only feasible option would be to roll out its armed forces. Clearly, it is doubtful whether a solitary terrorist attack would be able to meet this qualification.

Secondly, an armed conflict is seen to arise whenever there is “any difference arising between two States and leading to the intervention of members of the armed forces”. This definition presupposes that there are two sides to the conflict who engage in arms in order to resolve their conflict. There is usually a state of armed conflict between two parties. In addition, the traditional view has been that war is generally an international armed conflict that takes place between two nation states, each trying to assert its will on the other. Based on the above it is doubtful whether one could legally engage in an armed conflict with terrorists. Whereas it is correct that the armed forces of a particular state could be deployed to hunt out, capture and kill terrorists, such as the KDF has done in Somalia, the terrorists do not, in turn, have an armed force that could then result in an armed conflict. In reality any “war” against terrorists does not have the typical ingredients of a battlefield clash; be it in the air, on the land or over the waters. Since terrorists engage in their criminal activities under the cover of ordinary daily occurrences, it is unrealistic to expect them to engage directly with a country’s armed forces. Instead, depending on the particular modus operandi of the particular terrorist organization one would expect that they would attempt to mingle with innocent civilians.
In the Lubanga case the International Criminal Court held that an armed conflict is of an international character if “it takes place between two or more States” and that “this extends to the partial or total occupation of the territory of another State, whether or not the said occupation meets with armed resistance.” Again, the ICC in the Bemba decision, held that “an international armed conflict exists in case of armed hostilities between States through their respective armed forces or other actors acting on behalf of the State” .
A non international armed conflict, on the other hand, must occur within the territory of the State . The Additional Protocol II , provides that the non state actor must be “under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations”. Thus, in order for an internal conflict to be qualified as a non international armed conflict and therefore to be covered by IHL there are certain necessary ingredients that must be met. The main one is that the threshold of the conflict must exceed that of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. In applying this provision the ICTY Appeals Chamber decision in the Tadic case held as follows:
“an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there” .

Further in the Lubanga decision, while setting out the characteristics of a non international armed conflict the court held that one should consider “the force or group’s internal hierarchy; the command structure and rules; the extent to which military equipment, including firearms, are available; the force or group’s ability to plan military operations and put them into effect; and the extent, seriousness, and intensity of any military involvement” .

Again, in order for a conflict to be characterized as a non international armed conflict, it must “take place in the territory of a High Contracting Party” . This means that the theatre of the conflict should have been in Kenya, not Somalia. While the government of Somalia could make the argument that when it combats Al Shabaab it is engaging in a non international armed conflict, the KDF cannot. Significantly, the KDF operation cannot meet the requirements of a non international armed conflict on this score too. Apart from repeated isolated attacks in Kenya it cannot be said that the Al Shabaab controlled a part (or any part of Kenya) of Kenya as at the time of the invasion. Further, the KDF has not engaged militarily with any Al Shabaab terrorist groups within Kenya. Lastly, the law requires the military operations of the armed group to be “sustained and concerted”. Although the Al Shabaab has conducted raids on Kenyan soil, it would be a stretch to characterize them as either sustained or concerted.

From the above, it is evident that the use of a war paradigm when confronting the Al Shabaab terror group in Somalia-or any other terror group for that matter-is tenuous. In reality, attacks by terrorist groups ought to be considered as criminal activities that require police response-even militarized police response if necessary-rather than acts of war. As Stacie Gorman has stated:

“terrorists are criminals, and not soldiers of war… The practice of trying terrorists in a court of law suggests that the United States has, in the past, recognized that it is limited in its ability to declare war against terrorist groups”

It is therefore important for more police action-rather than military activity-to be involved in this “war” against terrorists in the region. The former are not only more efficient in counter terrorism operations but will not suffer legal incongruity.

The Issue of Consent in Rape Prosecution: International Tribunals and Indian Courts

Written by Garima Tiwari


While India struggles to make amendments to the existing rape laws a brief look into how the International Criminal Court (ICC) and International Tribunals have dealt with rape would be interesting. A look at the Indian position in the same context would help understand how the process differs particularly with reference to the issue of ‘consent’.

Nicolas  Poussin’s  famous  painting the “Rape of the Sabine Women” depicts women  walking  away  arm-in-arm  with  their  rapists,  suggesting “that  the  abducted  women  soon  accepted  their   assailants  as husbands.” It is  not surprising  then,  that rape  and  other  forms  of sexual violence  emanating  from  war  have  historically  been undocumented  and unpunished crimes.  Rape has been viewed as a reward or “spoil of war.”‘[i]

The first international treaty implicitly outlawing sexual violence, the Hague Convention of 1907, did not end impunity for these crimes: after World War II, for instance, the International Military Tribunal at Nuremberg did not expressly prosecute sexual violence, and the Tokyo Tribunal ignored the Japanese army’s enslavement of “comfort women”. In 1949, the landmark Geneva Conventions stated: “Women shall be especially protected … against rape, enforced prostitution, or any form of indecent assault.” [ii] It was the two  ad hoc International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR), which, for the first time, dealt comprehensively with the crime of rape.

Position taken by ICTR

The Akayesu case[iii]  recognised that rape is an extremely grave crime as it can constitute genocide and a crime against humanity, providing that all the other elements for each of these crimes are met. Here the ICTR adopted a very broad definition of the crime of rape, which is defined as ‘a physical invasion of a sexual nature, committed on a person under circumstances which are coercive’. It also dealt with sexual violence, a broader category which includes the more specific crime of rape, whose identifying elements are recognised as ‘any act of a sexual nature which is committed on a person under circumstances which are coercive. Sexual violence is not limited to a physical invasion of the human body and may include acts which do not involve penetration or even physical contact’.[iv] Thus, in  Akayesu coercion was identified as the criteria for rape consent was irrelevant. The Semanza trial chamber[v] held that “the mental element for rape as a crime against humanity is the intention to effect the prohibited sexual penetration with the knowledge that it occurs without the consent of the victim.” In effect, rape went from being a physical act committed on the body of a victim to a psychic act committed in the mind of the perpetrator and the issue of lack of  consent became relevant. Kajelijeli[vi], followed Semanza and focused on non-consent and description of body parts when determining whether Mr. Kajelijeli should be held responsible for rapes committed by forces under his command. He was found innocent of rape and was not found guilty of genocide for the rapes his men committed. In the Muhimana case[vii] ICTR stated that, “coercion is an element that may obviate the relevance of consent as an evidentiary factor in the crime of rape.” In other words, the court ruled that most international crimes will be almost universally coercive—making true consent virtually impossible and therefore irrelevant for international prosecution.

The judgment and sentence in Prosecutor v. Karemera et al.[viii], issued recently by Trial Chamber III of ICTR secured the first international judgment to ever hold high-level government officials responsible for rape in such circumstances unlike as we will see what happened in Lubanga.[ix]

Proving rape in genocide (or other violent conflicts) using the Akayesu criteria would be relatively straightforward. Once the context of the violent conflict has been established, rape occurring within that context is assumed to be non-consensual. On the other hand, many rapes that would be provable under Akayesu would be difficult or impossible to prove under the Semanza definition. This would not only insult the victims but severely damage the credibility of the international tribunals for handling rape cases.[x]

Position taken by ICTY

The Delaliæ et al case aka Èelebiæi case[xi] case confirmed the approach that characterises the ICTR jurisprudence on the matter. In fact, the judges adopted the same ‘conceptual’ broad definition found in the Akayesu judgment. However, the ICTY in the Furundžija judgment[xii], adopted a more technical and specific definition. It qualified rape as an outrage upon personal dignity as provided for in Article 3 of the ICTY Statute (war crimes) and torture.The Furundžija definition (para. 185) represents the result of a peculiar approach followed by the ICTY, which involved looking at national jurisdictions to extrapolate what—due to the international lacuna on the matter—should represent a common perception of the elements of the crime. The outcome of this exercise was the following definition of rape, which is divided into two parts:(i) the sexual penetration, however slight:  (a) of the vagina or anus of the victim by the penis of the perpetrator or any other  object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator; (ii) by coercion or force or threat of force against the victim or a third person. Thus, here coercion and lack of consent both were needed. This amounted to reintroducing the relevance of consent for rape prosecution. In the  Kunarac et al case [xiii]it was held that rapes that occurred in a brothel-like setting in Foca were a form of enslavement. The court drew on the Furundzija decision and concluded that “sexual penetration will constitute rape if it is not truly voluntary or consensual on the part of the victim.” It put forward a definition whose elements could be generally recognised as essential by the most representative countries in the world. Therefore, once again, an in-depth research of national jurisdictions was carried out and the conclusion is a step beyond the Furundžija definition. Sexual acts are forbidden when perpetrated against the free will of a person, and the ‘use of force-threat’ element is reduced from the status of an element of the crime to a being evidence of the lack of consent of the victim to the sexual intercourse. The judges confirmed rape as a war crime and crime against humanity. Moreover, the act of rape was considered as one of the underlying acts for the crime of enslavement. Instead, in defining the elements of rape, the Foca Trial Chamber included a consent paradigm, permitting defendants to use consent to sex as a defense, which had been considered and excluded from previous Chambers. While the ICTY’s definition of consent laudably incorporates the notion of sexual autonomy, and is a liberal standard relative to consent requirements globally, the consent paradigm is inappropriate in conflict situations where rape is used as a weapon of war.

The Kvocka et al case [xiv]  reintroduced the requirement of the use of force as an element of the crime, together with the lack of consent. The Kunarac et al Appeal Judgement[xv] confirmed the previous definition given by Trial Chamber II in the same case. The Appeals Judges confirmed that the lack of consent is conditio sine qua non of the definition of rape and that the requirement of the use of force is not an essential element but rather a symptom of lack of genuine consent (para. 129).[xvi] The Appeals Chamber leaned toward the need to “presume non-consent” in contexts like genocide. In situations like Foca where women were held in rape camps, “such detentions amount to circumstances that were so coercive as to negate any possibility of consent.”

As Catherine MacKinnon notes : No other crime against humanity, once other standards are met, requires that the crime be proved to be non-consensual. In fact, using victim’s consent as a defense would be bizarre. Consider a trial for murder within a genocide. How plausible would it be if a defendant claimed that, even though the act of killing took place within a setting of genocide, the victim had really wanted to be killed, so the perpetrator simply obliged? The reason that consent is not relevant for prosecuting rape in international crimes is that the crime takes place within a context where what we normally think of as sexual autonomy (at least for women) does not exist. Given the context of radical force, there is no true choice and so no consent in international crimes.[xvii]  Thus, ICTY and ICTR are both trying to presume non-consent in coercive situations which I think is very positive.

Position taken by ICC

The Statute of the International Criminal Court proves that the achievements of the ICTR and ICTY with regard to the prosecution of the crime of rape have been generally accepted by the international community. Article 7(g) of the ICC Statute specifically prohibits rape and, in addition, includes ‘sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity’ within the notion of crimes against humanity. Moreover, paragraph (h) of Article 7 confirms persecution as a crime against humanity and includes gender as a new discriminatory ground. At paragraph 3 of the same Article it is further specified that the term gender is general in nature, thus referring to both sexes. Rape is also listed in Article 8 (b) (xxii)-1 as a war crime.     In the Elements of Crime annexed to the ICC Statute, the crime of rape requires the penetration of the anal or genital opening of the victim with an object or otherwise the penetration of any part of the body with a sexual organ, thus recalling the analogous first part of the Furundžija definition. Similarly, a reference to coercive situations capable to vitiate the genuine consent of the victim of rape is provided for in Article 7 (1) (g)-1 of the Elements.Thus, both coercion and consent have been discussed.

But the first judgment delivered by the ICC failed to give any help in this regard. In the Lubanga case, despite evidence pointing to wide spread rape and other forms of sexual violence against in particular girl child soldiers, the Prosecutor did not include crimes of sexual violence in the charges. The charges were brought under Article 8, war crimes, and as such could have included charges of torture, rape, sexual slavery or outrages upon personal dignity. The Trial Chamber noted that they chose not to amend the charges. The Prosecutor could have amended the indictment at any time prior to trial or even at a reasonable moment during the presentation of the prosecution case.

Judge Odio Benito, in her dissent, differed from the majority’ decision not to use the evidence of sexual violence as a means to define the legal elements of enlistment, conscription of children or use of children in hostilities as innate to their status as child soldiers. Judge Odio Benito’s reasoning related to the interpretation of the war crime charges at hand and, thus, was not conditioned upon the submission of further amended charges. Evidence or information certainly did come out during the trial concerning the widespread nature of the sexual violence that occurred when these children were conscripted and enlisted. To that extent the case highlights the sexual violence even though it has not been charged.[xviii] Various groups suggested later on that a failure to add more serious charges would run the risk of offending the victims and strengthen the growing feeling of mistrust of the work of the ICC and of the work of the prosecutor especially. [xix]

Rape Law in India

India’s current definition of rape is steeped in outmoded traditions, dates from 1860, and  has been amended only twice since then, in 1983 and 2003. In India,it is defined as intentional and unlawful sexual intercourse with a woman without her consent. According to section 375 of the Indian Penal Code, an allegation of rape has to satisfy the either of the following criteria: sexual intercourse between a man with a woman in the following circumstances: (a) against the will of the woman; (b) without her consent; (c) under duress; (d) consent obtained by fraud; (e) consent obtained by reason of unsoundness of mind or intoxication. If the woman is below the age of 16 years, sexual intercourse is deemed to amount to rape.  Even if the woman has consented, it would be considered rape under the law. There is however, an exception to this definition of rape.  Un-consented sexual intercourse between a man and his wife would not amount to rape if the wife is 16 years or older. According to section 376 of the Indian Penal Code, the minimum sentence for a convicted rapist is seven to 10 years, while the maximum sentence is life imprisonment. Gang rape carries a punishment of 10 years to life imprisonment. However, in certain situations a convicted rapist can get away with serving less time since the law allows the judge discretion to award a lesser punishment in special cases such as an aged person or a person of unsound mind. Under section 354 of the Indian Penal Code, sexual assault is described as “outraging the modesty of a woman” – a description considered archaic, subjective and limited by legal experts. Currently sexual assault crimes carry a maximum punishment of two years. [xx]

Thus, issue of consent and coercive situations both have been incorporated in the Indian law, but the application of law is not in tandem with the requirements of justice as what is consent is linked with various social, cultural and moral annotations along with the character and sexual history of the prosecuterix. In 2011, only 26% of rape trials ended in conviction. In Delhi for instance, there’s only been one conviction out of 635 cases of rape reported in 2011.[xxi] This is also because, various social elements like the stigma attached to pre-marital sex, stereotyping as well as virginity play in the mind. This presumption of consent was embodied in Section 155 (4) of the Indian Evidence Act, which allowed defendants to offer evidence about a victim’s character and sexual history and remained there till altered as recently as 2002.  Changing law does not change much, since various practises and notions surrounding rape still stem on the character of the victim, like use of the “two-finger test” being a sufficient testament of the history of sexual intercourse of the victim. Indian law is still based on the colonial times and ironically while Britain changed its rape law with time, we are still caught in the web of antiquity. Another important aspect is the mindset. According to a survey by Sakshi, an NGO active in gender issues, 74% of judges surveyed a decade ago believed that “preservation of the family” should be a principal concern for women even in the event of violence in the home. And 51% believed that women who stay with abusive husbands are “partly to blame” for their plight. Some 68% felt that “provocative attire was an invitation to rape” and 55% felt that the “moral character of the victim” was relevant.

In the Mathura Rape case [xxii] the Supreme Court acquitted the two policemen who raped a sixteen year old girl on the grounds that the victim had no visible marks of injury and that she did not raise an alarm. Here consent has been implied from no resistance. In Mohd. Habib v. State [xxiii] the Delhi High Court acquitted a man who raped a seven year old girl, asserting that there were no marks of injury on his penis. The Court refused to take cognizance of the bite marks on the victim’s person and the fact that she suffered a ruptured hymen on account of the sexual assault. Even the eye- witnesses who witnessed this ghastly act, could not sway the High Court’s judgment.  In State of Punjab vs. Gurmit Singh[xxiv] , the Supreme Court has advised the lower judiciary, that even if the victim girl is shown to be habituated to sex, the Court should not describe her to be of loose character. The Supreme Court has in the case of State of Maharashtra Vs. Madhukar N. Mardikar [xxv] , held that “the unchastity of a woman does not make her open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate her person against her wish. She is equally entitled to the protection of law. Therefore merely because she is of easy virtue, her evidence cannot be thrown overboard.” Thus, character, and prior sexual history does not imply consent. In some cases the Supreme Court has also observed that sex with the consent of the girl on a promise to marry her will not constitute rape unless it was shown that such consent was obtained by the man under coercion or threat.[xxvi]

The Mathura case is relevant because a minor change in the law did take place in 1983, focussing on custodial rape in which it would no longer be necessary to prove lack of consent. This is similar to the situation of coercion as used in the International tribunals for the situation is such, wherein the victim is unable to retaliate, consent would not be needed. This has been provided under Section 114A of the Indian Evidence Act 1872 as presumption of no consent.

Justice Verma Committee, formed as a response to the Delhi Gangrape incident, recommends inclusion of marital rape thereby highlighting marriage does not given unequivoval right over the body of the other, and consent remains relevant. The Criminal Law (Amendment) Bill, 2012, widens the ambit by replacing the word rape with sexual assault .While earlier, the definition of rape under the Indian Penal Code was sexual intercourse with a woman without her consent, courts have confined it to penile penetration of the vagina. The new amendment though brings under the ambit of this offence penetration of “vagina, anus, urethra or mouth with any part of the body including the penis, or any other object for a sexual purpose”. The definitions are also making the law gender neutral. Thus, consent in all such cases would be looked into.


As seen above, both in Indian law and international law, two criteria are used to identify rape: Coercion and non-consent.[xxvii] Indian law includes both in some way yet, consent is sometimes judged with eyes of stereotyping. Some countries, may adopt either of the two. The trend of ICTR and ICTY more towards looking at the situation as coercive, because of the nature of events and placing consent irrelevant in such circumstances of war and conflict.

There are several ways that the international crime of rape may be different from some national definitions of rape. There are a important legal and procedural protections offered to rape victims by most international courts which are mostly absent from national courtrooms, such as permitting in camera testimony and not permitting attacks on the victim’s credibility through probing their sexual relationships. The tribunals have also taken positive steps to ensure victims of sexual violence can testify without retribution or fear for their safety. Through the development of its rules of procedure, the ICTY has sought to protect the victims of sexual violence from abusive lines of questioning during testimony. Witnesses can also testify under a pseudonym, with face and voice distortion in video feeds, or in closed session. Thus, the procedural  rules  in  the ICTY  and ICTR,  and  ICC,  allow  for  judicial  discretion  in  granting  witness anonymity. Again, in wartime rape  crimes,  identity  does  not become  a  crucial factor,  as  it  does  in  regular  domestic  rape  cases. Furthermore, as is clear from above discussion, international criminal law does not revolve around the issue of consent to the same extent as it does in many national settings.

Even though a lot can be learnt from the various procedural and legal protections offered by international tribunals, the issue of consent has to be studied differently in different national systems whose national, religious, cultural and political ideologies infuse the laws.

[i] Patricia H.  Davis, Comment, The  Politics of Prosecuting Rape as a  War Crime, 34INT’LLAW 1223,1226  (2000)

[iii] Case No. ICTR-96-4-T, 2 September 1998

[iv] Akayesu, para. 688,Musema, case No. ICTR-96-13, at para. 965

[v] Prosecutor v. Semanza, Case No. ICTR-97-20-T, Judgment and Sentence (May 15, 2003)

[vi] The Prosecutor v. Juvénal Kajelijeli (Judgment and Sentence), ICTR-98-44A-T, International Criminal Tribunal for Rwanda (ICTR), 1 December 2003, available at: %5Baccessed 30 January 2013]

[vii] The Prosecutor v. Mika Muhimana, Case N° ICTR-95-1B-T

[viii] The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T (issued on 2nd February 2012)

[x] MacKinnon, Catherine A. 2006. “Defining Rape Internationally: A Comment on Akayesu.” Pp. 237-246 in Are Women Human? Catherine MacKinnon. Cambridge, MA: The Belknap Press of Harvard University Press.

[xi] Case No. IT-96-21-T, 1998

[xii] Case No. IT-95-17/1-T, 10 December 1998

[xiii] Case No. IT-96-23 and IT-96-23/1, 22 February 2001)

[xiv] Case No. IT-98-30/1, 2 November 2001; ( paras. 177-178).

[xv] Case No. IT-96-23 & IT-96-23/1 A, 12 June 2002 paras. 125-133),

[xix] “Obtaining further charges in the opening case against Thomas Lubanga”, Statement by women’s rights and human rights NGOs of the DRC on the prosecutions by the ICC, Beni, September 16, 2006

[xxii] 1978) CrLJ 1864 SC

[xxiii] (1989) CrLJ 137 Delhi

[xxiv] (1996) 2 SCC 384

[xxv]  AIR 1991 SC 207

[xxvii] Supra Note 10