Lubanga Decision Roundtable: The Participation of Children in Hostilities

[Cecile Aptel is Associate Professor of International Law at the Fletcher School, Tufts University]

Among the many legal and factual issues raised by the landmark Lubanga judgment rendered by the ICC this week, a central one concerns the definition of “the use [of children under 15] to participate actively in hostilities” qualified as war crimes under both article 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Rome Statute, the only charges retained against Lubanga. The sensitive question of the definition of “use to participate actively in hostilities” gave rise to a dispute between the majority of the trial chamber, including its presiding judge, judge Fulford, and judge Odio-Benito, and resulted in the latter issuing a separate and dissenting opinion.

The judges disagreed on whether or not the terms “use to participate actively in hostilities” should actually be defined in the judgment. The majority opined:

[…] Given the different types of roles that may be performed by children used by armed groups, the Chamber’s determination of whether a particular activity constitutes “active participation” can only be made on a case-by-case basis. (para. 627)

Judge Odio-Benito in her separate and dissenting opinion disagreed with this case-by-case determination, arguing notably that it potentially risks leading to divergent assessments of the respective harms suffered by different children, in particular by the girls victims of sexual violence.

Judge Odio-Benito’s concern appears to stem notably from the failure of the prosecution to charge Lubanga for the sexual crimes committed against some of the child-soldiers. This has been a contentious issue throughout the trial.  Despite frequent references to sexual violence during the trial, and the insisting demands by the legal representatives of the victims that new charges be added, this never occurred, in part because the prosecution opposed it.  With no separate charges for these crimes, the majority concluded that:

[…] because facts relating to sexual violence were not included in the Decision on the Confirmation of Charges, it would be impermissible for the Chamber to base its Decision pursuant to Article 74(2) on the evidence introduced during the trial that is relevant to this issue. (para. 630)

Judge Odio-Benito retorted:

[…] By failing to deliberately include within the legal concept of “use to participate actively in the hostilities” the sexual violence and other illtreatment suffered by girls and boys, the Majority of the Chamber is making this critical aspect of the crime invisible. […] (para. 16)

She proceeded on what she perceives as:

[The] duty of the Chamber to include sexual violence within the legal concept of “use to participate actively in the hostilities” (para. 17) and found that: “[…] Sexual violence is an intrinsic element of the criminal conduct of “use to participate actively in the hostilities”.[…]” (para. 20)

But is subsuming sexual crimes under the category of “the use to participate actively in hostilities” the optimal solution to highlight the plight of the children victims of these crimes?  Is this the best manner to demonstrate the tragic and long-lasting suffering caused to the victims of sexual violence, rape, sexual slavery, and forced pregnancies, too often suffered by the girls associated with armed groups? As all and each the above crimes constitute separate offences, duly recognized and criminalized under the Rome Statute, are they not worthy of separate consideration, as a way to fully acknowledge their existence and the particular harm suffered by the victims, in addition to the harm caused by their recruitment or use by armed groups/forces?

Ultimately, to include children used as cook or sexual slave among those “used to participate actively in hostilities” is inspired by, or at least in line with, the approach championed by child-rights proponents, including by the UN.  It aims to remedy past mistakes, for instance when girls, who could not hand over a weapon upon their release, would miss on the benefits and opportunities reserved exclusively for former combatants, such as participation in reintegration or training programs.  This approach has led to the growing use of the term “children associated with armed forces or armed groups” – also known as CAAFAG- to include the girls and boys used for example as domestic servants, even if they never directly participate in hostilities. A related term, “children associated with armed conflict”, was regularly used during the Lubanga trial.

Whilst well-meaning, this human-rights and child-rights approach may have possible unintended – yet potentially dangerous – consequences for the children concerned, because of the hesitancy of both the majority judgment and judge Odio-Benito’s opinion to clearly differentiate between “use to participate actively in hostilities” and “direct participation in hostilities”. The two expressions are historically related, both referring to international humanitarian law’s taxonomy. Related terms are found in the Additional Protocols to the Geneva Conventions, which first codified the prohibition to recruit or use children in hostilities. Article 77(2) of Additional Protocol I stipulates that: “The parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities […]” (emphasis added), and article 4(3)(c) of Additional Protocol II that: “children who have not attained the age of fifteen years shall [not be] allowed to take part in hostilities”.  This international humanitarian law language was incorporated in the subsequent 1989 Convention on the Rights of the Child, its article 38(2) requesting state-parties to “take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities” (emphasis added).

Yet, the Lubanga judgment does not clarify the distinction, disposing of if it through a single short paragraph:

The use of the expression “to participate actively in hostilities”, as opposed to the expression “direct participation” (as found in Additional Protocol I to the Geneva Conventions) was clearly intended to import a wide interpretation to the activities and roles that are covered by the offence of using children under the age of 15 actively to participate in hostilities. It is noted in this regard that Article 4(3)(c) of Additional Protocol II does not include the word “direct”. (para. 627, footnote omitted)

The hasty disposition of this important matter can potentially be damaging because, under international humanitarian law, whomever ‘directly participates in hostilities’ in an armed conflict loses one’s protection from direct attack, and becomes a legitimate potential target.

In this regard, the following finding is concerning:

[…] Those who participate actively in hostilities include a wide range of individuals, from those on the front line (who participate directly) through to the boys or girls who are involved in a myriad of roles that support the combatants. All of these activities, which cover either direct or indirect participation, have an underlying common feature: the child concerned is, at the very least, a potential target. The decisive factor, therefore, in deciding if an “indirect” role is to be treated as active participation in hostilities is whether the support provided by the child to the combatants exposed him or her to real danger as a potential target.1804 […] (para. 628, emphasis added, footnotes omitted).

Ultimately, the protection of children recruited by armed groups and forces would have been maximized had the Trial Chamber established that there is no contradiction between, on the one hand, broadening the human rights protection afforded to all children associated with armed groups/forces to better protect them from recruitment and use by armed groups and forces, and, on the other hand, restrictively construing the category of those children ‘directly participating in hostilities’ so that only those most directly involved in combat lose their protection as civilians under international humanitarian law.