Gender Bias In The Prosecution Of International And Transnational Crimes- Aaron Onyango

Abstract

The recent conviction of Dominic Ong’wen by the ICC despite the pleas of the defence team highlighting the unfortunate and involuntary circumstances under which he came to commit the crimes he was convicted of, has elicited much debate over the fairness of the strict application of international laws. The conviction has also highlighted the difference in the treatment ofmale and female members of the LRA are accorded with the former being treated as victims and programs put in place for their rehabilitation and reintegration. On the other hand, their male counterparts are either treated as criminals to either be pardoned or prosecuted. This work, using the LRA as a case study, sought to highlight the negative bias towards males in the prosecution of international and transnational crimes and the manners in which this bias is exhibited.

1.0 Introduction

1.1 Definition and scope

International crimes constitute serious offences that not only concern humanity as a whole but also challenge the collective human conscience. The crimes generally regarded as international crimes as outlined by the Rome Statute are genocide, war crimes, crimes against humanity and the crime of aggression. Clear definitions for transnational crimes, on the other hand, remain elusive with some scholars indicating that transnational crimes, unlike international crimes create direct criminal liability, create indirect responsibility by imposing the responsibility upon respective states to criminalise certain acts.For this article, however, transnational crimes will entail those crimes, other than international crimes outlined in amendment 28A of the Malabo Protocol.

1.2 Background

The day 25th December 1989 saw the first time that a woman would answer for crimes committed in her own right since the post–WWII trials that saw several female Nazi officers like IlsaKoch convicted of war crimes. It would take decades for another female to be formally charged with committing an international crime. On a fateful day in Romania, Elena Ceauşescu stood by her husband Nicolae, as they were dispatched with by firing squad after being found guilty of genocide and corruption-related crimes by a local military tribunal. It can still be argued,however, that Romania’s former first lady only met her indictment as a result of her proximity to her husband. This however is rebuttable considering she had consolidated political power in her own right and become a member of the governing political body, holding sway over decisions taken by the regime.

Since the inception of the International Criminal Court, only one woman, Simon Gbagbo, has been formally indicted for an international crime. Despite the ICC’S indictment, Outtara’sregime opted to try her locally. She too was indicted alongside her husband Laurent Gbagbo, a former Ivorian president. No other females have since been indicted of international or transnational crimes by any international tribunal. Does this then mean that men have a greater affinity to the perpetration or facilitating the commission of international and transnational crimes? What of the female soldiers seen armed and donning military attire in armies and rebel factions accused of committing international crimes, whose fellow ranking soldiers have been tried and convicted of the same? This article seeks to analyse the extent of this gender bias in the existing international legal framework and practice.

2. 0 A case study of the Lord’s Resistance Army (LRA)

2.1 Dominic Ong’wen’s case

The recent conviction of long–time rebel Dominic Ong’wen by the ICC was viewed by some quarters as a populist show that not only highlighted the discriminatory results of applying Eurocentric legal standards to African conditions but also highlighted the manifest gender inequality that the international criminal regime possesses. The case evoked discussions of whether Ong’wen was more victim than perpetrator within the hospices of the LRA.

2.2 The LRA

The LRA, formed and led by Joseph Kony, is a rebel faction that intended to bring the territory of Uganda under Kony. It has perpetrated numerous atrocities since its inception including murder, rape, genocide and other heinous crimes. Dominic Ong’wen was abducted as a child, and indoctrinated over the next half decade into the ways of the LRA through fear, mysticism, brainwashing, and constant threats of violence. Other males were recruited in a similar manner and would end up serving the LRA as soldiers and junior commanders.

Similarly, girls and young women were abducted and forced to serve as wives, cooks and sex slaves of the LRA troops. Among them were women that rose up the ranks to command respect only subordinate to Kony himself. They also stayed with the young abductees when the male troops went out for their raids and military operations inculcating them into the LRA’s way of life.

This backdrop evokes surprise as to why to-date, only male members of the LRA, most of whom were abducted were treated as perpetrators while their female counterparts are viewed as victims. It evokes the question as to why Dominic Ong’wen and other male abductees are to spend the remainder of their liveslanguishing behind bars when their accomplices being their wives, either go free, tour the world amassing wealth from book sales, interviews and talks, when both were taken under similar circumstances and are equally culpable for the offences committed by the LRA with their roles as aiders, abettors or accomplices.

2.3 Adjudication LRA-related crimes: practice and opinions

Different justifications have been given by courts, scholars and stakeholders for the prosecution or lack thereof of LRA members and combatants including;

2.3.1 The extent of involvement

Proponents have asserted that the men have been directly involved in the perpetration of crimes such as executing killings, tortures, and destroying houses. These proponents highlight that the women and girls only performed domestic and conjugal duties, and were never part of the atrocities as they were left behind in camps while the atrocities were perpetrated.

The Rome Statute assigns criminal responsibility not only to perpetrators of crimes but also those who aid and abet in the commission or attempted commission of the crimes.[i] This means that even those who do not commit the actual crimes are as culpable as the perpetrators. This provided that they act with the intention of assisting the perpetrators in committing crime or in the knowledge that the perpetrators intend to commit a crime.[ii] The women’s performance of domestic duties ensured that the militants remained fed and energized to perform the atrocities. They also nursed the injured combatants back to health as well as helped carry and nurse children who had been abducted by the LRA, just as Ong’wen was carried around for his first few weeks with the LRA.[iii] The women also helped inculcate younger girls in the group, preparing them to be wives of the soldiers. All these acts meet the threshold under the Rome Statute for aiding and abetting, adorning them with similar liability over the crimes.

2.3.2 The fear factor

It has been advanced that all the acts performed and the cooperation exhibited by the girls and women abducted were coerced by through fear and a threat to harm. These proponents contend that the girls and women were more vulnerable and subject to torturous acts such as rape which their male counterparts were not subject to.

It has been demonstrated that fear was dished out equally among all abductees regardless of gender, and threats of violence as well as actual violence metered unto males as well.[iv] During the inculcation period, the males were forced to kill and mutilate at gunpoint, rendering them similarly slaves of the LRA.[v] This fear persisted long after the indoctrination.

Both genders were thus equally privy to the fear evoked by the LRA and performed the acts or duties they did either to please Kony or gain his favour to improve their chances of survival, or under the threat of death or grievous harm.

Intention to carry out a crime or to cause the resultant consequences, and knowledge of the likely consequences that one’s conduct may cause, form the mental element required for criminal responsibility.[vi] This there means that in the absence of this mental element, perpetrators cannot be criminally liable. The fear and coercion experienced by both male and females by the LRA therefore voided their criminal responsibility. Both genders involved should thus be spared from criminal conviction. In practice, only the female ex-LRA members are treated as victims and offered rehabilitation as their male counterparts are prosecuted for international crimes, both locally and at the ICC.

2.3.2 The choice to escape

It has been advanced that the male combatants on various occasions had the opportunity to escape but instead chose to stay with Kony. It has further been stated that these were males who after many years in the jungle new the terrain and could have easily absconded.

The fear used by Kony, encompassing ‘mystical powers’, which his brainwashed followers genuinely believed he possessed played a role in preventing both males and females from escaping from the camp. They had also witnessed people who had attempted to escape being killed or mutilated. Ong’wen recalled having been forced skin alive a third abductee with whom he had tried to escape.[vii] Assuming that his fear affected one gender more would be unfair because the fear of impending harm is not gender specific and can affect someone’s action or inaction regardless of their ability to maneuver the forests.

In addition, the women and girls left behind when the troops went out for raids and expeditions for extended periods at a time,[viii] had similar opportunity to flee. Having traversed the wilderness with the troops, they also had an idea of the routes and paths to the nearest villages, outposts and to rescue.

Another rebuttal of this position is the simple fact that as some of Kony’s male troops fled and surrendered to authorities, sometimes accompanied by females, some women stayed with the LRA.[ix]

2.4 Conclusion

It is clear from the aforementioned that both the men and women abducted by the LRA were subjected to similar conditions which encompassed the same levels of threats and fear. They are also similarly implicated in the same crimes despite their different degrees of participation, all of which make them legally culpable for committing international crimes.

3.0 Women only treated as accomplices

Of the forty-four(44) people who have been indicted of international crimes by the ICC, only one is female.[x] Simone Gbagbo was indicted alongside her husband for crimes against humanity.[xi] This is owing to her position to the proximity her husband’s regime and her role in co-creation of policies that resulted in the commission of the crimes. She was however locally tried unlike her husband who was handed over to the ICC for prosecution, despite being accused for committing the same acts[xii]

The bias in the treatment of males demonstrated in Simone Gbagbo’s case pales in comparison with the treatment of Isabella dos Santos, the daughter of Angola’s former president Eduard dos Santos. Although it can be demonstrated that her deliberate actions, albeit with her father’s initial assistance led to her irregular enrichment, she is still viewed as a beneficiary of her father’s corrupt regime. Dos Santos stands accused irregularly enriching herself while majority of Angolans live in poverty.[xiii] The only repercussions she has suffered are some of her foreign held investments being seized and accounts frozen. Angolan authorities are yet to issue an international arrest warrant for her arrest and subsequent prosecution.[xiv]

This selective approach effecting justice against women implicated in committing international and transnational crimes has resulted in women not facing the full brunt of the law, as their cases are determined from a perspective of being chance accomplices of male counterparts despite having played an equal or even greater role in the related crime, and given arguably more favourable treatment than their counterparts.

4.0 Conclusion and recommendations

It is clear from the aforesaid, that the current international criminal law regime is biased towards men, and skewed towards the permissible disregard of female perpetrators unless they are implicated in extreme acts of crime. This approach is unfair considering men have been convicted of even the lowest degrees of complacency in conduct with regards to the said crimes. The application of the law has also been biased towards men resulting in an unequal rate of convictions and indictments which do not truly reflect the extent of participation of both genders in the commission of international and transnational crimes.

Going forward, the legal regime should be revised to eliminate leeway through which one gender can be erroneously allowed to escape the full repercussions of their criminal conduct under the guise of victimhood or being merely an accomplice. The application of the laws should also be strictly uniform regardless of gender.

[i] Rome statute of the International Criminal Court 1998, Art 25 (3)(c)

[ii] Ibid, Art 25 (3)(d)

[iii] JRP, Complicating Victims and Perpetrators in Uganda: On Dominic Ongwen, (JRP Field Note 7 2008) http://justiceandreconciliation.com/wp-content/uploads/2008/07/JRP_FN7_Dominic-Ongwen.pdf Accessed 12th February 2021

[iv]Anonymous, Florence Ayot “My children are always reminded that their father is a notorious rebel commander, (The New Humanitarian 2012) https://www.thenewhumanitarian.org/report/95645/uganda-florence-ayot-my-children-are-always-reminded-their-father-notorious-rebel-commander , Accessed 12th February 2021

[v] Ibid

[vi] Rome statute of the International Criminal Court 1998, Art 30