Lubanga Decision Roundtable: Lubanga Legacies?
A long time in coming, to be sure, and slightly anticlimactic, the Lubanga judgment nonetheless represents a watershed – a first, in any event, for the ICC. What might the legacies of the Lubanga judgment be? I thank the organizers for inviting me to speculate on this question. Three lenses come to mind: jurisprudence, pedagogy, and bureaucracy.
Jurisprudential. Lubanga further clarifies the scope of the war crime of conscripting or enlisting children under the age of fifteen into armed forces or groups or using them to participate actively in hostilities. Specifically, although conscription and enlistment are separately mentioned as offenses, the consent of the child can never be a defense. Proof of compulsion is not required. As a matter of liability, therefore, it doesn’t matter whether the child was forcibly abducted or was enlisted after volunteering. The Trial Chamber did intimate that an abductor might be sentenced more harshly than the commander who enrolls child volunteers (para. 617, also referencing reparations). Lubanga also examines the question as to what, exactly, using a child to participate actively in hostilities actually means. The majority approach focused on whether the “support provided by the child to the combatants exposed him or her to real danger by becoming a potential target” (para. 820). This approach obscures the reality that some child soldiers may face the prospect of greater harm from members of their own forces (whether adult leaders, mid-level officials, and fellow children) than from “enemy” forces. Sexual slavery and abusive punishment come to mind. Judge Odio Benito took up this point in her separate and dissenting opinion.
Pedagogic. Overall, the Lubanga judgment invokes, and further embeds, the prevailing image of child soldiers as victims who lack capacity to determine their best interests in the context of armed conflict (paras. 610-618). I have argued elsewhere that this image, although indicative of the lives of many child soldiers, cannot so readily be generalized. What is more, this imagery may also become disabling, may discourage the input of former child soldiers in processes of post-conflict reconstruction, and may weaken the development of a robust culture of juvenile rights. The use of imagery is a powerful tool to mobilize resources and actualize denunciation. Alternately, the use of other images, for example that of child soldiers as feral youth programmed to kill, also serves instrumental political ends. The United States, for example, has stylized Omar Khadr and children associated with Al Qaeda as “very very dangerous” so as to justify their becoming subjects of harsh military commission proceedings and lengthy imprisonment. All extreme images are at best partial prints that occlude more than they clarify. Child soldiers are heterogeneous in their experiences, expectations, and paths to (and from) militarization. The fact that release of the Lubanga judgment coincided with the viral success of the Kony 2012 video further reinforces a number of sensationalized myths in public consciousness. One myth is the Africanization of child soldiering.
To be sure, about 40% of child soldiers world-wide are in Africa, but child soldiering truly is a global phenomenon. Another myth is that all child soldiers are abducted and forcibly conscripted. World-wide, most child soldiers, in actuality, exercise some initiative in their recruitment – at times, this initiative is chimerical, but at other times it is considerable and quite apparent. Young people do step forward to join fighting forces to achieve political goals, topple dictators, acquire training, effect economic gains, serve their community, and make the best of a bad situation. Youth volunteerism, however controversial, simply cannot be wished away – it needs to be recognized in order to develop effective preventative and rehabilitative mechanisms. I understand why the UN Special Representative submits in Lubanga that, for the purpose of the criminal culpability of the recruiter, “the line between voluntary and forced recruitment” is “legally irrelevant” and “practically superficial.” (para 612). However, looking beyond criminal law, I believe this line remains quite relevant to developing post-conflict policies that recognize individual diversity and needs. This recognition, in turn, better serves transitional, rehabilitative, restorative, and reconciliatory ends. The extent that imagery necessary to secure criminal convictions of recruiters spills over to inform the content of other forms of post-conflict programming may hamper the ability of that programming to attain key goals. The need for supple imagery and nuance is all the more important as global civil society and many states firmly push for eighteen as the outer edge of the child soldier category. Although the customary and Rome Statute crimes cut off at the age of fifteen, this truncation is seen by many as discordant with international law regulating youth militarization. The settled definition of child soldiers includes all persons under the age of eighteen (as the OTP itself recognizes, para. 574).
Bureaucratic. The Lubanga judgment elevates a simple solution to the complexity of child soldiering, that is, to criminally prosecute and convict a handful of ugly adult recruiters. But justice for child soldiers requires much more. In general, as I have written elsewhere, I believe that international criminal convictions occasion two problematic effects: distraction and assuagement. As for assuagement: it is easy to blame a handful of crazed commanders for child soldiering. But the ease of blame fails to uproot the many structural factors that conspire to facilitate child soldiering. As for distraction: justice for child soldiers requires much more than sporadic criminal convictions. It requires reintegrating child soldiers into communities. It requires listening to former child soldiers and their priorities, which often include education, conflict resolution, and jobs — not faraway, languid trials or medicalized psychotherapy. It requires restoration for persons affected by the violent acts of child soldiers. I hope that the reparative aspects of the Lubanga proceedings, which will follow at the ICC, would redress some of these gaps.