Emerging Voices: The Participation of Children in Hostilities before the ICC–An Inherent Contradiction between IHL and ICL?

[Demetra Loizou is a Lecturer in International Law and Legal Skills at the University of Central Lancashire, Cyprus.] 

Article 8 of the Rome Statute, which sets out the war crimes within the ICC’s jurisdiction, is inextricably linked to the general IHL regime. Paragraph 2(a) refers to the grave breaches of the 1949 Geneva Conventions (international armed conflicts). Paragraph 2(c) is concerned with the serious violations of Common Article 3 (CA3) of the 1949 Geneva Conventions (non-international armed conflicts). Paragraphs 2(b) and (e) apply to international and non-international armed conflicts, respectively. The chapeau to both paragraphs outlines the Court’s jurisdiction: ‘Other serious violations of the laws and customs applicable in armed conflicts […] within the established framework of international law’.

To this effect, the interpretation of Article 8 is delineated by the fundamental principles of IHL, such as the principle of distinction. According to this fundamental IHL principle, civilians ‘shall enjoy general protection against the dangers arising from military operations […] unless and for such time as they take a direct part in hostilities.’ (Additional Protocol I, Article 51; Additional Protocol II, Article 13) Similarly, CA3 provides for the humane treatment of persons ‘taking no active part in hostilities’. Thus, IHL treats ‘active’ and ‘direct’ participation as synonymous terms to be interpreted interchangeably (ICRC Interpretative Guidance on the Notion of Direct Participation in Hostilities, 43).

The war crime of using children under the age of fifteen ‘to participate actively in hostilities’ is found Articles 8(2)(b)(xxvi) and 8(e)(vii). It is based on Article 77(2) AP I and Article 4(3)(c) AP II, for international and non-international armed conflicts, respectively. Article 77(2) AP I prohibits the ‘direct’ participation of children under the age of fifteen in hostilities. Article 4(3)(c) also prohibits the participation of children under the age of fifteen in hostilities but omits the qualification of ‘direct’ participation. This discrepancy appears to be immaterial. According to the ICRC Commentary to AP I, the reference to ‘direct’ participation in hostilities also covers ‘indirect forms of participation’ given that the intention of the drafters was to ‘keep children under fifteen outside of armed conflict.’ (para.3187) Unsurprisingly, the ICRC Commentary to AP II refers to the same indirect activities and purpose (para. 4557).

There is an inconsistency between the meaning and scope of ‘direct’ participation in hostilities for the purpose of keeping the children out of hostilities, with the meaning and scope of the term for the purpose of distinguishing between combatants and non-combatants. The former imports a wider scope in keeping with the intention to prevent the participation of children in hostilities. Significantly, the ICC’s case-law on child soldiers has accentuated the existence of this paradoxical situation concerning the IHL prohibition on the use of children in hostilities vis-à-vis the wider IHL framework. This is because the Rome Statute provision effectively brought the prohibition within the remit of ICL for the first time.

In Lubanga, the ICC Chambers concluded that the term ‘active’ can encompass both direct and indirect participation (Lubanga TC Judgment para.628; AC Judgment para.340). Significantly, the ICC’s interpretation of ‘active’ participation reflects a broader understanding of the term compared to its meaning and scope under IHL.  

The underlying premise of the ICC’s reasoning is to be welcomed; it seeks to provide children with the widest scope of protection in terms of punishing those responsible for their participation in hostilities. At the same time, this approach gives rise to potential dangers. Civilians (including children) are more likely to become legitimate targets on the basis of a broader understanding of ‘active’ participation in hostilities. Arguably, this danger can be avoided by acknowledging that in the context of protecting children from being used in hostilities, active participation has a different meaning to direct participation (C. Aptel, Opinio Juris, 18 March 2012). This argument accords with the travaux préparatoires of the Rome Statute (Lubanga TC Judgment, para.621).

Nevertheless, the above reasoning does not effectively resolve the apparent contradiction between the meaning of ‘active’ participation (in the context of using children in hostilities) and the notion of ‘direct’ participation in hostilities for the purpose of distinguishing between combatants and civilians. Two interrelated issues arise here.

First, even if we accept that ‘active’ participation in hostilities (in the context of prosecuting the use of children in hostilities) serves a different purpose that ‘direct’ participation in hostilities as part of the wider framework of IHL, how can the ICC determine those situations where a child was an ‘active’ participant within the broader concept of the term adopted by the ICC, but not a ‘direct’ participant in hostilities under IHL? The ICC has yet to provide a satisfactory answer on the matter. The AC in Lubanga stated:

324. … the interpretation given to Common Article 3 of the Geneva Conventions in the context of the principle of distinction cannot be simply transposed to that of article 8 (2)(e)(vii) of the Statute. Rather, the term ‘participate actively in hostilities’ must be given an interpretation that bears in mind that provision’s purpose.

At first instance, the vagueness of the above reasoning must be given credit. An overly detailed definition would prevent the ICC from effectively responding to new forms of participation of children in hostilities. Nevertheless, it does not clarify the meaning and scope of the term ‘active participation in hostilities’. The consequences of this ambiguity can already be seen in Ntaganda. This case illustrates that the contradiction between ICL and IHL does not exclusively concern the war crime of using child soldiers. Rather, it also affects other crimes that may be committed against children.

Second, the contradiction between ICL and IHL does not affect exclusively the war crime of using child soldiers. The most relevant example are the war crime provisions on sexual violence (Articles 8(2)(b)(xxii) and 8(2)(e)(vi)). In Ntaganda, the defendant was convicted for the commission of rape and sexual slavery against child soldiers by members of the armed group to which they belonged. During the proceedings, the Defence had persistently argued that the Court could not exercise jurisdiction over these crimes, because IHL does not protect participants in hostilities from crimes committed against them by members of their own side (Ntaganda Confirmation Decision, para. 76).

There is merit in the Court’s approach in that it seeks to address an obvious weakness in terms of protecting children from the perils of armed conflict. Sadly, sexual violence is an all too common feature of armed conflict. It flies in the face of logic to argue that such conduct did not take place ‘in the context of and was associated with an armed conflict.’ However, the position of IHL is very clear on this point. IHL does not protect active combatants, including children, from violence committed against them by members of their own side to the conflict. The Court’s reasoning appears to be based on an incorrect conception of ‘active participation in hostilities’. The TC’s and AC’s negative response to the Defence’s challenge to the jurisdiction of the Court regarding the war crimes of rape and sexual violence against child soldiers, reveals a move towards a direction which is increasingly antithetical to Article 8’s IHL premise. According to the TC, members of the same armed force are not per se excluded as victims of the war crimes of rape and slavery, under the Rome Statute, IHL or international law more generally (Second Decision on the Defence’s Challenge, para.54) The AC conclusively rejected the Defence Challenge as follows:

65. …in the absence of any general rule excluding members of armed forces from protection against violations by members of the same armed force, there is no ground for assuming the existence of such a rule specifically for the crimes of rape or sexual slavery.

The AC reasoned that the armed conflict nexus is the appropriate criterion for delimiting war crimes from ordinary crimes (para. 68). As was to be expected, the ICC’s reasoning was received both with strong enthusiasm (R. Grey, IntLawGrrls, 15/07/2017) and criticism (K.J. Heller, Opinio Juris, 15/07/2017).

On the 8 July 2019, the TC convicted Ntaganda on all counts, including for the commission of rape and sexual slavery against child soldiers by members of the armed group to which they belonged. In setting out the applicable law, the TC reiterated its own findings and those of the AC, as stated above (para. 965). It remains to be seen whether the Defence will appeal the conviction decision.

Significantly, the ICC’s case-law on child soldiers is expected to evolve even further as more individuals are allegedly responsible for the said war crime. Ongwen is being tried under Article 8(2)(e)(vii). In September 2019, the confirmation of charges hearing in the joint case against Yekatom and Ngaϊssona is scheduled to commence. Both men are allegedly responsible for, among others, the involvement of children under the age of fifteen in armed conflict.

Essentially, the two issues identified above pertain to the interpretation of the term ‘active participation’ in hostilities in the context of child soldiers and its relationship vis-à-vis the general framework of IHL. In view of the ICC’s extensive focus on child soldiers, the time is ripe is to consider these very important issues, and whether ICL should develop in a different direction.