Abstract
Equal to the horrors suffered by children conditioned and exploited to perpetrate horrific violence on their battlefield adversaries is the violence they themselves endure often at the hands of their commanders and comrades. The Ntaganda case of the International Criminal Court (ICC) exposed a fault line in the core of international humanitarian law (IHL), which had the potential to cause a chink in the armour the law affords children affected by armed conflict. Ntaganda relied on an obscure, yet orthodox interpretation of IHL, challenging the jurisdiction ratione materiae of the court to prosecute him at once for the use of children for active participation in hostilities, and the rape and sexual slavery of the same children as war crimes. The basis for the argument is that ‘the laws of armed conflict do not protect members of armed groups from acts of violence directed against them by their own forces’. In particular, the defence argued that ‘the established framework of international law’ imports a status requirement in regard to the victim of the crime, the status requirement being that protection is reserved for ‘(i) persons taking no active part in the hostilities; (ii) members of armed forces who have laid down their arms; and (iii) those placed “hors de combat” by sickness, wounds, detention, or any other cause’. Trial Chamber VI dismissed Ntaganda’s challenge and the Appeals Chamber confirmed this finding, however, these decisions sharply divided high-profile members of the IHL and international criminal law (ICL) communities. The Ntaganda case has indeed given rise to considerable commentary, the thrust of which supports the Court’s conclusion. The aim of this chapter is to make a more discrete, yet vital contribution to the understanding of this issue by analysing whether children continue to enjoy special protection in terms of IHL once they are enlisted, conscripted or used for active participation in hostilities, and whether such children enjoy protection against sexual violence on an intra-party basis, as a matter of law.
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Notes
- 1.
This reality is illustrative of the hypocrisy in the fact that Art. 38 of the Convention on the Rights of the Child (CRC), which prohibits the recruitment and use of children younger than fifteen for direct participation in hostilities, is the only prevision of the CRC that provides for a lower-age threshold for protection than younger than eighteen. Indeed, Art. 6(2) compels states “to the maximum extent possible the survival and development of the child [younger than eighteen]”. Yet, these states can lawfully use fifteen-year-olds for direct participation in hostilities.
- 2.
Judgment, Ntaganda, (ICC-01/04-02/06-2359), Trial Chamber VI, 8 July 2019 (hereafter Ntaganda, Trial Chamber Judgment); Judgment, Ntaganda, (ICC-01/04-02/06-2782), Appeals Chamber VI, 12 September 2022 (hereafter Ntaganda, Appeals Chamber Judgment).
- 3.
Application on behalf of Mr. Ntaganda challenging the jurisdiction of the Court in respect of Counts 6 and 9 of the Document containing the charges, Ntaganda, (ICC-01/04-02/06-804), Trial Chamber VI, 1 September 2015 (hereafter Ntaganda challenge to Counts 6 and 9).
- 4.
Ibid, § 28.
- 5.
Ibid, § 21.
- 6.
Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9, Ntaganda (ICC-01/04-02/06-1707), Trial Chamber VI, 4 January 2017 (hereafter Ntaganda Trial Chamber Decision on challenge to Counts 6 and 9), § 54; and Judgment on the Appeal of Mr Ntaganda against the “Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9”, Ntaganda, (ICC-01/04-02/06-1962), Appeals Chamber, 15 June 2017 (hereafter Ntaganda Appeals Chamber Decision on challenge to Counts 6 and 9), § 71.
- 7.
Examples of critique of the position adopted by the ICC includes, Y. McDermott, ‘ICC extends War Crimes of Rape and Sexual Slavery to Victims from Same Armed Forces as Perpetrator’, IntLawGrrls, 5 January 2017, available at https://ilg2.org/2017/01/05/icc-extends-war-crimes-of-rape-and-sexual-slavery-to-victims-from-same-armed-forces-as-perpetrator/ (last visited 9 February 2023); and K.J. Heller, ‘ICC Appeals Chamber Says A War Crime Does Not Have to Violate IHL’, OpinioJuris, 15 June 2017, available at http://opiniojuris.org/2017/06/15/icc-appeals-chamber-holds-a-war-crime-does-not-have-to-violate-ihl/ (last visited 9 February 2023). In contrast, the following commentators support the conclusion reached by the ICC, but have added additional legal argumentation: P.V. Sellers, ‘Ntaganda: Re-Alignment of a Paradigm’, in F. Pocar (ed.), The Additional Protocols 40 Years Later: New Conflicts, New Actors, New Perspectives (Milan: Franco Angeli, 2018) 116–136; and M. Longobardo, ‘The Criminalisation of Intra-party Offences in Light of Some Recent ICC Decisions on Children in Armed Conflict’, 19 International Criminal Law Review (2019) 600–634. Svaček suggests that both the Ntaganda, Trial Chamber and Appeals Chamber Judgments fall foul of the principle of legality, yet he supports an interpretation of the applicable IHL which renders protection to child on an intra-party basis, O. Svaček, ‘Brothers and Sisters in Arms as Victims of War Crimes: Ntaganda Case Before the ICC’, 8 Czech Yearbook of Public and Private International Law 8(1) (2017) 346–357.
- 8.
See, for example, Longobardo, supra note 7, whose detailed analysis brings into question the provenance of the orthodox interpretation of IHL as not applying on an intra-party basis. Sellers, supra note 7, at 127–131, suggests that the continuing application of the child protective norms in IHL provides an adequate basis to prosecute a perpetrator both for the enlistment, conscription and use of children, as well as sexual violence perpetrated against them.
- 9.
Judgment, Lubanga (ICC-01/04-01/06-2842), Trial Chamber I, 14 March 2012 (hereafter Lubanga, Trial Chamber Judgment); Judgment, Lubanga, (ICC-01/04-01/06-3121), Appeals Chamber VI, 1 December 2014 (hereafter Lubanga, Appeals Chamber Judgment).
- 10.
Sellers, supra note 7, at 127–131.
- 11.
The Lubanga Arrest Warrant charged Lubanga under Art. 8(2)(e) of the Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002), 2187 UNTS 90 (hereafter Rome Statute) which requires a nexus to a NIAC. However, the Pre-Trial Chamber found the conflict at the relevant time to have been an IAC, requiring charges to argued under Art. 8(2)(b), Lubanga (Confirmation of Charges Decision), §§ 200–237. At judgment, the Trial Chamber determined that the conflict was at the relevant time a NIAC, as originally argued by the OTP, Lubanga, Trial Chamber Judgment, §§ 523–567. For the procedural history, see, M.E. Kurth, ‘The Lubanga Case of the International Criminal Court: A Critical Analysis of the Trial Chamber’s Findings on Issues of Active Use, Age, and Gravity’, 5 Goettingen Journal of International Law (2013) 431–453, at 435–436.
- 12.
Lubanga, Trial Chamber Judgment, § 261.
- 13.
J. Kleffner, ‘Scope of Application of International Humanitarian Law’, in D. Fleck, (ed.), Handbook of International Humanitarian Law (4th edn., Oxford: Oxford University Press, 2021) 50–80, at 63.
- 14.
Ibid, at 64.
- 15.
Ibid, at 63.
- 16.
Clapham, for example, posits that IHL as whole ‘does not cover how an armed group treats its own forces’. See, A. Clapham, ‘Human Rights Obligations for Non-State-Actors: Where are We Now?’, in F. Lafontaine and F. Larocque (eds), Doing Peace the Rights Way: Essays in International Law and Relations in Honour of Louise Arbour (Antwerp: Intersentia, 2018) 11–26, at 16.
- 17.
For example, Heller, supra note 7, states that, ‘IHL protection does not “generally” apply only to civilians and combatants hors de combat. On the contrary, each and every IHL convention applies only to those two categories of individuals’ (own emphasis).
- 18.
Judgment, The Prosecutor vs. Isa Hassan Sesay, Moris Kallon and Augustine Gbao (hereafter RUF case) (SCSL-04-15-T), Trial Chamber I, 2 March 2009, §§ 1452–1453. This was in part the argument made by Ntaganda’s defence team, although as it relates to the charges against him, the argument was confined to those rules of IHL that proscribe rape and sexual slavery. See, Ntaganda (Challenge to Counts 6 and 9), supra note 3.
- 19.
RUF case, ibid, §§ 1452–1453.
- 20.
A. Cassese, International Criminal Law (3rd edn., Oxford: Oxford University Press, 2013), at 78.
- 21.
J. Kleffner, ‘Friend or Foe? On the Protective Reach of the Law of Armed Conflict: A Note on the SCSL Trial Chamber’s Judgment in the Case of Prosecutor v. Sesay, Kallon and Gbao’, in M. Matthee, B. Toebes and M. Brus, Armed Conflict and International Law: In Search of the Human Face: Liber Amicorum in Memory of Avril McDonald (The Hague: T.M.C. Asser Press, 2013) 285–302; and J. Kleffner, ‘The Beneficiaries of the Rights Stemming from Common Article 3’, in A. Clapham, P. Gaeta and M Sassoli (eds), The 1949 Geneva Conventions: A Commentary (Oxford: Oxford University Press, 2015) 433–447.
- 22.
S. Sivakumaran, The Law of Non-International Armed Conflict, (Oxford: Oxford University Press, 2012), at 246–249.
- 23.
Ibid.
- 24.
The Decision on the Confirmation of Charges determined that there was sufficient evidence to establish substantial grounds to believe that Lubanga committed the war crime of enlisting and conscripting children under the age of fifteen years into the FPLC and using them to participate actively in hostilities during both the periods covering early September 2002 to 2 June 2003 and 2 June to 13 August 2003. Decision on the Confirmation of Charges, Lubanga, (ICC-01/04-01/06-803), Pre-Trial Chamber I, 29 January 2007, §§ 406–408 (hereafter Lubanga, Confirmation of Charges Decision). In the Decision on the Confirmation of Charges in the Ntaganda case it was determined that there were substantial grounds to believe that UPC/FPLC soldiers and Ntaganda himself committed the war crime of enlistment and conscription of children under the age of fifteen years between 6 August 2002 and 31 December 2003; the war crime of using children under the age of fifteen years to participate actively in hostilities between 6 August 2002 and 30 May 2003; and that UPC/FPLC soldiers committed the war crimes of rape and sexual slavery against child soldiers between 6 August 2002 and 31 December 2003. Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, Ntaganda, (ICC-01/04-02/06-309), Trial Chamber II, 9 June 2014, § 74 (hereafter Ntaganda, Confirmation of Charges Decision).
- 25.
For a compelling critique see, R. Copelon, ‘Gender Crimes as War Crimes: Integrating Crimes against Women into International Criminal Law’, 46 McGill Law Journal (2000) 217–240. At 224–229 Copelon chronicles to troubled trial history in the first successful international prosecution for sexual violence as a crime against humanity in: Judgement, The Prosecutor v. Jean-Paul Akayesu, (ICTR-96-4-T), Trial Chamber, 2 September 1998.
- 26.
Charges were only brought under Art. 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Rome Statute, see Lubanga, (Confirmation of Charges Decision), supra note 24. For critique of the narrow scope of charges see, International Federation for Human Rights, Democratic Republic of the Congo: Breaking the Cycle of Impunity (2008), available online at https://www.fidh.org/IMG/pdf/DRCsexualcrimeseng2008.pdf (last visited 9 February 2023); and K.O. Smith, ‘Prosecutor v. Lubanga: How the International Criminal Court Failed the Women and Girls of the Congo’, 54(2) Howard Law Journal (2011) 467–500.
- 27.
Lubanga (Decision Giving Notice to the Parties and Participants that the Legal Characterization of the Facts may be Subject to Change in Accordance with Regulation 55(2) of the Regulations of the Court), (ICC-01/04-01/06-2049), Trial Chamber I, 14 July 2009. The charges that were contemplated were, sexual slavery pursuant to Art. 7(l)(g) or 8(2)(b)(xxii) or 8(2)(e)(vi) of the Rome Statute, and inhuman and / or cruel treatment pursuant to Art. 8(2)(a)(ii) or 8(2)(c)(i) of the Rome Statute.
- 28.
Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009, Lubanga, (ICC-01/04-01/06-2205), Appeals Chamber, 8 December 2009, § 112. For a detailed overview of the procedural history see, A.C. Diala, ‘Victims’ Justice and Re-Characterizing Facts in the Lubanga Trial at the ICC’, 7 Eyes on the ICC (2010) 59–84. For more critical commentary see, S. Merope, ‘Recharacterizing the Lubanga Case: Regulation 55 and the Consequences for Gender Justice at the ICC’, 22(3) Criminal Law Forum (2011), 311–346.
- 29.
Lubanga, Trial Chamber Judgment, §§ 1351–1357.
- 30.
Lubanga (Decision on Sentence pursuant to Article 76 of the Statute), (ICC-01/04-01/06-2901), Trial Chamber I, 10 July 2012, §§ 98–99 (hereafter Lubanga, Sentencing Decision).
- 31.
Lubanga, Appeals Chamber Judgment, § 529.
- 32.
Separate and Dissenting Opinion of Judge Odio Benito, Lubanga, Trial Chamber Judgment, §§ 15–21.
- 33.
Ibid, § 16.
- 34.
Kurth, supra note 11, at 439–442; N. Jørgensen,’ Child Soldiers and the Parameters of International Criminal Law’, 11(4) Chinese Journal of International Law (2012) 657–688, at 679–684; J. Tan, ‘Sexual Violence Against Children on the Battlefield as a Crime of Using Child Soldiers: Square Pegs in Round Holes and Missed Opportunities in Lubanga’, 15 Yearbook of International Humanitarian Law (2012) 117–151, at 138–139. Contra: K. Gallagher, ‘Towards a Gender-Inclusive Definition of Child Soldiers: The Prosecutorial v. Thomas Lubanga’, 7 Eyes on the ICC (2010–2011) 115–136, at 125–129.
- 35.
K. Ambos, ‘The First Judgment of the International Criminal Court (Prosecutor v. Lubanga): A Comprehensive Analysis of the Legal Issues’, 12(2) International Criminal Law Review (2012) 115–153, at 137; and Tan, supra note 34, at 142–145.
- 36.
Smith, supra note 26, at 468–469.
- 37.
See, inter alia, Smith, supra note 26, at 477; and Merope, supra note 28, at 312–313. Art. 54 (1)(b) of the Rome Statute puts forward the duties of the prosecutor: ‘Take appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court, and in doing so, respect the interests and personal circumstances of victims and witnesses, including age, gender as defined in article 7, paragraph 3, and health, and take into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children’.
- 38.
See generally, Joint Application of the Legal Representatives of the Victims for the Implementation of the Procedure under Regulation 55 of the Regulations of the Court, Lubanga, (ICC-01/04-01/06-1891), Trial Chamber I, 24 May 2009.
- 39.
Warrant of Arrest, Lubanga, (ICC-01/04-01/06-8), Pre-Trial Chamber I, 22 August 2006 (hereafter Lubanga Arrest Warrant); and Warrant of Arrest, Ntaganda, (ICC-01/04-02/06-2), Pre-Trial Chamber I, 22 August 2006 (hereafter Ntaganda first Arrest Warrant).
- 40.
Ibid.
- 41.
Warrant of Arrest, Ntaganda, (ICC-01/04-02/06-36), Pre-Trial Chamber II, 13 July 2012 (hereafter Ntaganda, second Arrest Warrant).
- 42.
Ntaganda (Challenge to Counts 6 and 9), supra note 3, at § 28.
- 43.
Ntaganda (Trial Chamber Decision on challenge to Counts 6 and 9), supra note 6.
- 44.
Ibid, at § 44.
- 45.
Ibid, at § 47.
- 46.
Ibid, at § 48.
- 47.
Ibid, at §§ 51–52.
- 48.
Ibid, at § 46.
- 49.
Ntaganda (Appeals Chamber Decision on challenge to Counts 6 and 9), supra note 6.
- 50.
Ibid, § 46.
- 51.
Ibid, §§ 57–63.
- 52.
Ibid, § 64.
- 53.
Sellers, supra note 7, at 127–131.
- 54.
Ibid.
- 55.
As conceded by Ntaganda’s defence team and discussed in further detail below. See, Ntaganda (Challenge to Counts 6 and 9), supra note 3, § 30. Technically, however, this would only be the case in IAC, as in order for ‘membership’ on an organized armed group to operate such that it can be deemed to exclude intra-party violations, the given child, a fortiori, need to be a direct participant in hostilities.
- 56.
Sellers, supra note 7, at 127–131.
- 57.
However, the charges in Ntaganda related to the equivalent NIAC provision, contained in Art. 8(2)(e)(vi) of the Rome Statute.
- 58.
See the Draft Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, Following the Second Session of the Diplomatic Conference, (1975), at Art. 6 and 6bis; and Draft Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, Following the Third Session of the Diplomatic Conference, (1976), at Art. 6 and 6bis.
- 59.
Ibid.
- 60.
Official Record of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–1977) Volume VII 90–92 CDDH/SR 50 during the fiftieth plenary meeting on 3 June 1977.
- 61.
S. Fatima, Protecting Children in Armed Conflict (Oxford: Hart Publishing, 2018), at 184; M. Happold, Child Soldiers in International Law (Manchester: Manchester University Press, 2005), at 66–67; M.A. Drumbl, ‘Reimagining Child Soldiers in International Law and Policy’ (Oxford: Oxford University Press, 2012), 139.
- 62.
Sellers, supra note 7, at 128–129.
- 63.
For example, Greenwood discusses in detail the obiter dictum discussion in the Tadic case regarding the extent to which the law on the conduct of hostilities in IAC were deemed to apply as customary international law to NIAC. He comments, ‘It is open to question whether the Appeals Chamber was wise to raise such an important matter in this way, rather than waiting for a case which actually required a decision on the content of this part of humanitarian law. It is also doubtful whether the practice discussed in this part of the decision really sustains some of the inferences drawn from it’. C. Greenwood, ‘The Development of International Humanitarian Law by the International Criminal Tribunal for the Former Yugoslavia’, Max Planck Yearbook of United Nations Law (1998) 97–140, at 128–131. Droege and Giorgou provides an overview of these developments in their analysis of the development of IHL, see, C. Droege and E. Giorgou, ‘How International Humanitarian Law Develops’, 920–921 International Review of the Red Cross (2022) 1798–1839, at 1812–1815.
- 64.
For example, Kretzmer, Ben-Yehuda and Furth present a compelling argument that the scope for lawful use of lethal force during NIAC is much narrower than during IAC. In contrast, the ICRC Customary Law Study suggests that, because of development through customary international law, the scope for the use of such force is identical across both regimes. See, D. Kretzmer, A. Ben-Yehuda and M. Furth, ‘Thou shall not kill”: the use of lethal force in non-international armed conflicts’, 47(2) Israel Law Review (2014) 191–224.
- 65.
Rule 137 provides, ‘children must not be allowed to take part in hostilities’. J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules (New York, International Committee of the Red Cross, Cambridge, 2005), at 485.
- 66.
M. Milanovic and S. Sivakumaran, ‘Assessing the authority of the ICRC Customary IHL Study: How does IHL develop?’, 920–921 International Review of the Red Cross (2022) 1856–1897.
- 67.
The ICRC Customary Law Study, for example, provides in the commentary to Rule 137, that, ‘although there is not, as yet, a uniform practice regarding the minimum age for participation in hostilities, there is agreement that it should not be below 15 years of age’. Such a claim is not at all supported by the evidence. There is in fact not a single state internationally who’s legal and policy framework provides for direct participation in hostilities of children younger than eighteen, outside of extraordinary circumstances, as provided for in the “all feasible measures” standard. Indeed, very few customary norms that enjoy wide or even universal support is premised on such strong state practice and opinio juris.
- 68.
Commentary to Rule 137, supra note 65.
- 69.
B. Zimmermann et al., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, (Geneva: International Committee of the Red Cross, 1987), at Art. 77.
- 70.
Ibid.
- 71.
Ibid, at Art. 4(3)(d).
- 72.
Ibid.
- 73.
Ibid.
- 74.
Commentary to Rule 136, supra note 65.
- 75.
See, for example, Clapham, supra note 16, at 16; M. Cottier and J. Grignon, ‘Paragraph 2(b)(xxvi): Conscription or Enlistment of Children and their Participation in Hostilities’, in O. Triffterer and K. Ambos (eds), The Rome Statute of the International Criminal Court: A Commentary (3rd edn, Munich: CH Beck-Hart-Nomos, 2015) 519–528, at 523.
- 76.
Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries (2001), 2(2) Yearbook of the International Law Commission, 2001, (New York and Geneva: United Nations, 2007), (adopted by International Law Commission, GA Res A/56/10), at Art. 28, 87–88, § 3.
- 77.
Ibid, at 95. For further discussion see, M. Sassòli, ‘State responsibility for violations of international humanitarian law’, 848 International Review of the Red Cross (2002) 401–434, at 418–419; L. Hill-Cawthorne, ‘Rights under international humanitarian law’ 28 European Journal of International Law (2017) 1187–1215, at 1206–1207; R. Hoffman (co-rapporteur), Art 6. Declaration of International Law Principles on Reparation for Victims of Armed Conflict, International Law Association (2010), available at https://www.ila-hq.org/en_GB/documents/conference-report-the-hague-2010-10 (last visited 13 February 2023), at 13–21.
- 78.
The Appeals Chamber of the Special Court for Sierra Leone put it thus, ‘these modes of recruiting children [enlistment; conscription and use] are distinct from each other and liability for one form does not necessarily preclude liability for the other’. See Judgment, The Prosecutor v. Moinina Fofana and Allieu Kondewa (hereafter CDF) (SCSL-04-14-A), Appeals Chamber, 28 May 2008, § 139.
- 79.
Ntaganda (Challenge to Counts 6 and 9), § 30.
- 80.
Ntaganda, Trial Chamber Judgment, § 53.
- 81.
For example, see, Commentary to Rule 3, supra note 65.
- 82.
For discussion in the context of Common Article 3 to the Geneva Conventions, see, Kleffner, ‘The Beneficiaries of the Rights Stemming from Common Article 3’, supra note 21, at 435–436.
- 83.
There is a concern the broad protection offered by Art. 4(3)© of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (hereafter APII) against the use of children younger than fifteen for indirect participation in hostilities may equate these children to members of the group whose lose IHL protection. This is, however, not a justified conclusion.
- 84.
See generally, Ntaganda (Challenge to Counts 6 and 9), supra note 3.
- 85.
Geneva Conventions, Common Art. 3(1), (own emphasis).
- 86.
Kleffner, ‘The Beneficiaries of the Rights Stemming from Common Article 3’, supra note 21, at 435–437.
- 87.
Lubanga, Trial Chamber Judgment, § 609.
- 88.
APII, Art. 4(3)(c) and Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts, Art. 77(2).
- 89.
For example, Rule 6 of the ICRC Customary Law Study provides, ‘Civilians are protected against attack, unless and for such time as they take a direct part in hostilities’, supra note 65. This is a distillation of Art. 51(3) API and Art. 13(3) APII.
- 90.
API, at Art. 77(2). There is debate as to whether the notion of DPH should be singularly construed across the various contexts it is used in the Geneva Convention Framework. The ICRCs Interpretive Guidance on the Notion of Direct Participation in Hostilities provides that the Guidance ‘examines the concept of direct participation in hostilities only for the purposes of the conduct of hostilities’. However, this does not necessarily imply that the standard should be differently construed, but rather that the Guidance excludes contexts other than the conduct of hostilities from consideration, and thus in effect leaves this question open. See, for example, Fatima, supra note 61, at 182–183; and N. Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, International Committee of the Red Cross (ICRC), May 2009, available online at https://shop.icrc.org/interpretive-guidance-on-the-notion-of-direct-participation-in-hostilities-under-international-humanitarian-law-pdf-en.html (last visited 13 February 2023), at 11.
- 91.
For my previous more detailed analysis of this, see G. Waschefort, International Law and Child Soldiers (Oxford: Hart Publishing, 2015), at 62–68.
- 92.
Rome Statute, supra note 11, at Art. 8(2)(b)(xxvi) and Art. 8(2)(e)(vii).
- 93.
Kleffner, ‘The Beneficiaries of the Rights Stemming from Common Article 3’, supra note 21, at 436–439. Compare: Geneva Conventions, at Common Art. 3(1), API, at Arts. 43(2), 47(2)(b), 51(3), 67(1)(e), 77(2) and 77(3), as well as APII, at Arts. 4(1), 4(3)(d) and 13(3).
- 94.
Lubanga (Confirmation of Charges Decision), supra note 24, § 261.
- 95.
The ICC premised its reasoning as to the meaning of ‘active participation’ on a Report of the Preparatory Committee on the Establishment of an International Criminal Court. In this sense, the conclusion is not one premised on the legal meaning of ‘active participation in hostilities’ in international law, but rather as a concept defined specifically for the purposes of the ICC. Indeed, there is a circularity to the argument of the Court in this regard. See, Lubanga (Confirmation of Charges Decision) supra note 24, § 261; and Report of the Preparatory Committee on the Establishment of an International Criminal Court, (A/CONF.183/2/Add.1) (14 April 1998), available online at https://digitallibrary.un.org/record/253772?ln=en (visited 13 February 2023), at 21 (fn. 12).
- 96.
Interpretive Guidance, supra note 90, at 27–36.
- 97.
Ibid, Principle II provides, ‘In non-international armed conflict, organized armed groups constitute the armed forces of a non-State party to the conflict and consist only of individuals whose continuous function it is to take a direct part in hostilities’ (own emphasis).
- 98.
It is hard to imagine today that prior to the adoption of the Rome Statute on 17 July 1998, child soldiering was a peripheral issue in international law. Machel’s ground-breaking report that shone the spotlight of international attention on the plight of children associated with fighting forces was released less than two years prior and there had never been an international or domestic prosecution for the military use or recruitment of children. Bassiouni, the Chairman of the Drafting Committee for the Diplomatic Conference, commented during 2000 that the child soldier offence in the Rome Statue in the context of non-international armed conflict (NIAC), is “progressive”. See, M.C. Bassiouni, ‘The Normative Framework of International Humanitarian Law: Overlaps, Gaps and Ambiguities’, 75(3) International Law Studies (2000) 1–55, at 20. Scharf, the US Representative at the Rome Conference, went further, ‘the use of children under the age of 15 years in hostilities was not currently a crime under customary international law and was another area of legislative action outside the purview of the Conference’. See, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Committee of the Whole, Summary Record of the 4th Meeting, A/CONF.183/C.1/SR.4, 20 November 1998, § 54.
- 99.
The Trial Chamber as well as Appeals Chamber of the ICTY rendered several decisions of immense importance in the understanding of both IHL and ICL during the course of the prosecution of Duško Tadić. The most significant of which is Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Tadić (IT-94-1-AR72), Appeals Chamber, 2 October 1995.
- 100.
Vienna Convention on the Law of Treaties, at Art. 31(3)(c).
- 101.
See, for example, R. Bartels, ‘Discrepancies between international humanitarian law on the battlefield and in the courtroom: the challenges of applying international humanitarian law during international criminal trials’, in M. Matthee, B. Toebes and M. Brus, Armed Conflict and International Law: In Search of the Human Face: Liber Amicorum in Memory of Avril McDonald (The Hague: T.M.C. Asser Press, 2013) 339–378; and R. Bartels, ‘Dealing with the Principle of Proportionality in Armed Conflict in Retrospect: The Application of the Principle in International Criminal Trials’, 46(2) Israel Law Review (2013) 271–315.
- 102.
R. Cryer, ‘International Criminal Law’, in M. D. Evans (ed), International Law (5th edn., Oxford: Oxford University Press, 2018) 743–773, at 752.
- 103.
The following authorities suggest, as put by Schabas, ‘enlisting, suggests something more passive [than recruitment], such as putting the name of a person on a list’, W. Schabas, An Introduction to the International Criminal Court (Cambridge: Cambridge University of Press, 2001), at 50; G. van Bueren, The International Law on the Rights of the Child (Amsterdam: Kluwer, 1998), at 337; 61 Dissenting Opinion of Justice Robertson, Decision on Preliminary Motion Based on Lack of Jurisdiction, Prosecutor v. Sam Hinga Norman, (SCSL-2004-14-AR72(E)), Appeals Chamber, 31 May 2004, § 27. In contrast, the following authorities suggest that recruitment includes enlistment and conscription, S. Sivakumaran, ‘War Crimes before the Special Court for Sierra Leone’, 8 Journal of International Criminal Justice (2010) 1009–1034, at 1012; Fatima, supra note 61, at 185; Longobardo, supra note 7, at 605; Lubanga, Trial Chamber Judgment, § 607.
- 104.
The ad hoc and hybrid tribunals of the past was confined to customary international law, as their respective statutes were drafted ex post facto the temporal jurisdiction of the tribunal. While the drafting committee of the Rome Statute was tasked with drafting a statute that reflects customary international law, there were no legal bars to exceeding custom at the time, as in fact the drafters did in several instances. See, Bassiouni, supra note 98, at 20; and Scharf, supra note 98, § 54.
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Waschefort, G. (2024). The International Criminal Court and the Protection of Child Soldiers against Intra-Party Violence. In: Faix, M., Svaček, O. (eds) ICC Jurisprudence and the Development of International Humanitarian Law. Global Issues. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-45994-8_7
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