Nicole Urban is the Research Fellow in International Humanitarian Law at the British Institute of International and Comparative Law and previously read for an MPhil in Public International Law at the University of Oxford.
Last month the ICC handed down the judgment in its first competed trial, the Lubanga Case. Thomas Lubanga was convicted of the war crime of conscripting and enlisting children under the age of 15 and using them to participate actively in hostilities in conflicts not of an international character, as set out in Article 8(2)(e)(vii) of the Rome Statute. One of the key issues arising out of the judgment is the Trial Chamber’s interpretation of the term ‘active participation in hostilities’. The question of the meaning of the term arose acutely in relation to whether or not sexual violence against children, in the form of sexual slavery and forced marriages of child soldiers, fell within the scope of “active participation in hostilities”. The majority failed to decide on this question and Judge Odio Benito, in her separate and dissenting judgment, expressed understandable disappointment regarding the majority’s inconclusiveness on this issue.
The majority of the Trial Chamber raised, but did not reach a conclusion on, the legal meaning of term “active participation in hostilities”, as used in Article 8(2)(e)(vii). However, the majority found that ‘active participation’, under this provision of the ICC Statute, is a concept distinct from, and broader than, ‘direct participation in hostilities.’ The Court stated
‘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…'[para. 627]
This finding is contrary to the position under international humanitarian law [IHL], which treats the terms as synonymous. The consequences of the majority’s conclusions on this issue are, at this stage, unclear but potentially damaging to the mutually reinforcing relationship between IHL and international criminal law. By setting out this distinction between ‘direct’ and ‘active’, the Majority failed to consider the unintended consequences of its attempt to formulate a broad protection with the regard to the crime of conscripting and enlisting for the protections afforded by Common Article 3 of the Geneva Conventions (1949) and Article 8(c) of the Rome Statute, to those taking no ‘active’ part in hostilities. Equally dangerous is the ambiguous consequences of this ICC decision for the IHL concept of ‘direct’ participation in hostilities and the impact of the decision on those parts of the Rome Statute that incorporate this IHL concept by criminalising attacks on civilians that do not take a “direct” part in hostilities (Articles 8(b)(i) and (e)(i), ICC Statute). This post will set out the position on these issues under both IHL and the Lubanga Case and then consider each of the consequences outlined above.