The Definition of Using Children to Participate Actively in the Hostilities in the Lubanga Judgment and the Impact on Girl Soldiers by Fiona Oâ€™Regan (PhD student, IRCHSS scholarship recipient, Supervisors Dr Fiona Donson and Dr Siobhan Mullally)
On Wednesday, the International Criminal Court (ICC) delivered its long awaited first judgment, convicting Thomas Lubanga Dyilo of the war crime of conscripting or enlisting children and using them to participate actively in hostilities.Â This case marked a significant moment in the development of the law surrounding the use of child soldiers, representing an opportunity for the permanent court to strengthen understanding of these crimes, in particular, the myriad of activities that can form part of the recruitment and use of child soldiers. However, the ICC declined to take up this mantle and rather than define what is meant byÂ â€œusing children to participate actively in the hostilitiesâ€, the Court held that this term was to be defined on a case by case basis depending on the charges brought against the accused.
In her partial dissent, Judge Odio Benito criticised the majority for this stance, stating that â€œ[t]he Chamber has the responsibility to define the crimes based on the applicable law, and not limited to the charges brought by the prosecution against the accusedâ€.Â The Judge also added that â€œthis case-by-case determination can produce a limited and potentially discriminatory assessment of the risks and harms suffered by the childâ€.Â The practical consequence of this approach in the Lubanga case was that evidence relating to sexual violence which had been repeatedly raised throughout the trial and mentioned by 21 out of 25 prosecution witnesses in their testimonies, was not accounted for when the Chamber was determining the accusedâ€™s responsibility. The sexual violence evidence was not considered because no charges of sexual violence were brought against the accused and according to the Chamber, their decision could only be based on the charges brought (under Article 74 of the Rome Statute). In the words of Judge Odio Benito, the effect of this decision is that â€œthe Majority of the Chamber is making this critical aspect of the crime invisibleâ€.Â Girl soldiers in particular are negatively impacted by this outcome.
The plight of girl soldiers in armed conflict, particularly abuses which disproportionately affect girls, have tended to be overshadowed by more traditional conceptions of the crime of recruitment and use of child soldiers.Â Although girl combatants commonly carry out the same duties as boys, fighting in battles, acting as bodyguards, look-outs and spies; they are also expected to perform domestic work such as cooking and cleaning and more seriously, act as the so-called â€œwivesâ€ of commanders through engaging in sexual activity.Â Whilst all recruits, male and female are vulnerable to sexual violence through their training and living in the camps or as a means of punishment, only girls are targeted for these sexual slavery related crimes.Â Girls are often recruited to specifically fill these roles, which act as essential support functions and ensure that the particular militia operates effectively.Â Thus, these ostensibly subsidiary functions are in fact an intrinsic aspect of the role of a girl soldier.
Had the Chamber adopted the approach canvassed by Judge Odio Benito, whereby a definition of â€œusing children to participate actively in the hostilitiesâ€ had been set down by the Chamber independent of the facts of this particular case, then the sexual violence suffered by the victims engaged in this case could have been recognised, provided an expansive definition of this term was adopted.Â The UNICEF Principles and Guidelines on Children Associated with Armed Conflict and Armed Groups adopted in Paris in 2007 (The Paris Principles) offer some guidance in this respect, by specifically highlighting girl soldiers, stating that â€œthe use of girls as â€œwivesâ€ or other forced sexual relations, actual forced marriage and the use of girls for domestic labour or other logistical support in armed conflict constitute acts of recruitment or useâ€.Â The sexual violence suffered by child soldiers, particularly girls, is so intertwined with their recruitment and use that it ought to be included in the definition of child soldiering crimes, and in fact, to exclude it, as Judge Odio Benito states, would be to discriminate against girl soldiers, as it excludes a large part of their personal experiences of these crimes.Â Recognising the sexual violence angle to child soldiering would have been particularly beneficial in this case as the decision of the prosecutor to not charge crimes of sexual violence attracted considerable negative commentary and continues to be viewed as one of the major failings of the Lubanga case.Â Thus, had the Court recognised that sexual violence can form part of the recruitment and use of child soldiers then at least a degree of recognition would have been awarded to these crimes.
In addition, the Chamber heard considerable evidence from witnesses, mainly child soldiers about the sexual violence employed against recruits particularly girls.Â According to one witness who attended the demobilisation centres for child soldiers connected to this case, all the girls she met at these centres had been sexually abused and â€œthat the psychological and physical state of some of these young girls was catastrophicâ€.Â For these victims, the refusal by the Court to acknowledge this aspect of their suffering could have a very negative impact and may delay their efforts to reintegrate and move forwards from victimisation.Â The Chamberâ€™s decision to allow victim-witnesses and expert witnesses to testify about sexual violence and the prosecutor and the victimsâ€™ legal representatives to repeatedly ask questions about the issue appeared to lead to the conclusion that such evidence would be accounted for when assessing the accusedâ€™s responsibility, and therefore the ultimate decision not to take this evidence into account is very disappointing.
The Trial Chamber did state that sexual violence may still have relevance in the upcoming sentencing and reparations hearings, which may offer some comfort to the victims involved in this case, particularly girl soldiers.Â However, the failure to articulate a definition of â€œusing children to participate actively in the hostilitiesâ€ and instead leave the crime to be interpreted on a case by case basis meant that the ICC lost a valuable opportunity to further the law on child soldiering as well as offer recognition to the victims of sexual violence engaged in the present case.
ICC, Thomas Lubanga, Child soldiers, sexual violence, Odio Benito, international criminal law