UN expert says it currently can exclude girls since it focuses only on activities that are directly linked to combat.
By Rachel Irwin and Melanie Gouby in The Hague (AR No 241, 08-Jan-10)
The United Nations special representative for children and armed conflict urged judges on January 7 to recognise the multiple roles that child soldiers - especially young girls - play after they are enlisted.
Radhika Coomaraswamy - who appeared at the International Criminal Court, ICC, as an expert witness - was the first person to testify in the trial of Thomas Lubanga since the prosecution rested its case on July 14.
Lubanga, the former president of the Union of Congolese Patriots, UPC, faces charges of recruiting, conscripting and using child soldiers to fight in the inter-ethnic conflict in the Ituri region of the Democratic Republic of Congo, DRC, during 2002 and 2003.
The trial has been stalled for several months while appeals judges considered, and ultimately rejected, the possibility of adding charges of sexual slavery and cruel and inhumane treatment to the case.
Coomaraswamy said that the current definition of child soldiers "participating actively in hostilities" can exclude girls since it focuses only on activities that are directly linked to combat, such as scouting, spying or bringing materials to the front line.
It excludes, for example, children who deliver food or who are used as domestic servants or sex slaves by commanding officers.
In reality, she said, being a child soldier encompasses much more than fighting in battle, especially for girls.
"The [girls] are combatants one minute and sex slaves another minute," she said. "Those who are sex slaves also do military work."
She stressed that these girls often suffer repeated rape and forced marriage in military training camps, while others exist in a "forced state of nudity".
"For girls, [being a child soldier] is a particularly horrendous experience," she said. "It's important that your rulings... do not ignore abuse against girls after they are recruited and enlisted."
In a report Coomaraswamy wrote for judges in March 2008, she elaborated that determining whether a child "participated actively in hostilities" should be made on a case-by-case basis that moves away from the "rigid definition of child soldiers as exclusively armed combatants".
The focus on the plight of girl soldiers has been a steady theme throughout the Lubanga trial. So many prosecution witnesses spoke about the rape and abuse of young girl recruits that lawyers for participating victims asked judges to reclassify the existing charges to include sexual slavery and cruel and inhumane treatment. Appeals judges rejected this request on December 9.
Coomaraswamy also spoke about how children come to fight in armed groups. Many, she said, are simply abducted while others join because of extreme poverty or pressure from family or community members.
"Rarely [do] they join understanding what it means, what death means, what fighting means, and therefore their vulnerability is quite extensive and extraordinary," she said. "It's heartbreaking for anyone who meets them."
This lack of understanding is so profound, she said, that many children "go into battle thinking it's like a game ... they will run straight into the line of fire without thinking".
This makes them appealing targets for militia leaders, especially since children are generally willing to take orders from adults.
Coomaraswamy said that she spoke with some children who joined militias because they "found this lifestyle to be glamorous people wearing sunglasses, carrying guns and wielding power".
She stressed, however, that even if some children join these groups voluntarily, it is "absolutely agreed that children under the age of 15 cannot give consent to their own abuse and exploitation".
It is ultimately the responsibility of the militia leaders not to enlist children under the age of 15, she said.
Towards the conclusion of her testimony, Lubanga's lawyers pressed her about a child's right to "take up arms" in self defence.
"The argument of self defence works if a child is being attacked and defends himself," she responded. "But if he's taken into an armed group, that's a different question."
The court also heard the testimony of Professor Kambayi Bwatshia, an expert on how names are used in Congolese society. He was asked to testify after the defence noted that names of witnesses differed among the various documents submitted to the court.
Since this discrepancy could threaten witness credibility, lawyers for victims submitted an analysis of naming in the DRC and requested that an expert come to court and speak on the topic.
Next week, three participating victims are expected to testify. After they finish, the defence will officially begin its case, which is expected to last several months.
Rachel Irwin and Melanie Gouby are IWPR reporters in The Hague.