Direct and Active Participation in Hostilities: The Unintended Consequences of the ICC’s decision in Lubanga.

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.

The concept of ‘active’ and ‘direct’ participation in hostilities under IHL

‘Direct participation in hostilities’ is a term of art in IHL. That term is used several times in Additional Protocols I and 2 [See Article 51(3), Article 43(2) and Article 67(1)(e) of Additional Protocol 1; Article 13(3) of Additional Protocol 2]. Although not defined in any IHL treaty, the concept forms a part of one of the fundamental principles of IHL: the principle of distinction. The principle of distinction stipulates that civilians are protected from the effects of military operations “unless and for such time as they take a direct part in hostilities” [Article 51(3), API; Article 13(3) APII]. The rule that civilians (including children) are protected unless they participate directly in hostilities is also part of customary international law.

Common Article 3 to the Geneva Conventions sets out a similar rule in relation to conflicts not of an international character but uses the word ‘active’ rather than direct. It states that “[p]ersons taking no active part in the hostilities…shall in all circumstances be treated humanely…”

It is significant to observe that it is the term “direct participation” that is used in expressly in relation to the use of child soldiers in Article 77(2) of Additional Protocol 1 and Article 38 of the UN Convention on the Rights of the Child. These provisions stipulate that States (or other parties to international armed conflicts) shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities.

Under IHL the terms ‘active’ and ‘direct’ are synonymous. In the ICRC’s Interpretive Guidelines on the Notion of Direct Participation in Hostilities it was noted that although the Additional Protocols and the Geneva Conventions use different words, the phrase ‘participent directement’ is used consistently throughout French texts of each treaty [see text at ftnote 83-84]: a fact that strongly suggests a uniform meaning across IHL. Further, the ICRC found that the concept of participation in hostiles should be interpreted consistently across both international and non-international armed conflicts. Similarly, the Trial Chamber of the ICTR in the Akayesu Decision was called upon to interpret the meaning of the term ‘active’ in the concept of Common Article 3 and held that ‘direct’ and ‘active’ “are so similar that, for the Chamber’s purposes, they may be treated as synonymous.” [para. 629]

The conclusions of the ICC Trial Chamber

The Majority in Lubanga found, without reference to IHL or the ICRC’s Interpretive Guidance, that ‘active’ and ‘direct’ participation in hostilities were distinct concepts and that ‘active’ denoted a wider range of activities than ‘direct’. They held that:

‘the use of the expression “to participate actively in hostilities”, as opposed to the expression “direct participation”…was clearly intended to import a wide interpretation to the activities and roles that are covered by the offence…’ [para. 627]

And further, that:

‘Those who participate actively in hostilities include a wide range of individuals, from those on the front line (who participate directly) through to the boys or girls who are involved in a myriad of roles that support the combatants.’ [para. 628]

Although the Trial Chamber did not set out a definition of either concept, its reasoning strongly suggests that it considers ‘direct’ participation to mean involvement in front-line combat, and ‘active’ to be broader than this and to include ‘combat-related activities’. [para. 622] This was also the position of the Pre-Trial Chamber, [para. 261 of its decision] and the Preparatory Committee’s draft Rome Statute [p. 21, ftnote 12], both of which were cited without comment in the decision, and which set out several examples of ‘active’ but not ‘direct’ participation including “scouting, spying, sabotage and the use of children as decoys, couriers or at military check-points.” [para. 622]

This approach is consistent with the AFRC Case in the Special Court for Sierra Leone, as cited in the judgment [para. 624], and the amicus curiae submissions of United Nations Special Representative of the Secretary-General for Children in Armed Conflict.

It was open to the Trial Chamber to find that ‘active participation’ required activities to have a “link with combat” [para. 621] or that it did not cover “activities clearly unrelated to the hostilities” [para. 621], as had been stated in the drafting of the ICC Statute. However, the Majority did not reach a conclusion about how far the concept of ‘active participation’ extended [para. 628]. Specifically, it left open the question of whether or not the ‘use’ of children to participate actively in hostilities included sexual exploitation of child soldiers. Notably, the concept of ‘direct participation’ under IHL would be unlikely to incorporate sexual slavery or exploitation.

Unintended Consequences

It is clear from the above analysis that there is a significant difference in the meaning of ‘direct participation’ under IHL, as set out in the ICRC’s Interpretive Guidance, and in the Lubanga Case. The ICC has adopted a very narrow understanding of the concept (referring only to front line combat) whereas, the ICRC’s Interpretive Guidance sets out a slightly broader definition capable of incorporating many of the examples given by the Court of ‘active participation’ such as scouting, sabotage, and guarding military objectives. For further discussion about the ICRC’s Interpretive Guidance see Dapo Akande’s entry on this blog. It is too early to say how far the concept of ‘active participation’ under the ICC will stretch, however, there is currently a strong correlation between this concept and that of ‘direct participation’ under IHL.

This definitional problem between the two regimes creates unnecessary ambiguity as to the relationship between the Court’s understanding of the active/direct concepts under the Rome Statute, and the treaty provisions of IHL. This situation is untenable and needs to be resolved in order to avoid some unintended consequences. By seeking to give a broad interpretation to ‘active participation’ the Court is, laudably, ensuring that the protection contained in Article 8(2)(e)(vii) has a long reach and does not exclude many children who do not participate in front line combat but who, nevertheless, are essential to combat. But caution must be exercised, as what the Court is seeking to give with one hand it is taking away with the other.

Article 8(2)(e)(vii) does not sit alone and must be interpreted in its legal context. For example, Common Article 3 uses the word ‘active’ rather than ‘direct’ to describe those persons who benefit from its protection and Article 8(c) of the Rome Statute incorporates this terminology. The broader the Court’s understanding of the term ‘active’ under Article 8(2)(e)(vii), the narrower the protection available under Common Article 3 and Article 8(c). Should the sexual exploitation of and violence against child soldiers render them ‘active’ participants in hostilities under one Article, there is a real risk that they will also be considered as active participants in hostilities under the others. This would result in these children being excluded from the protection of Common Article 3 and Article 8(c) of the Rome Statute. This results in an overall net reduction in protection for those children that the Court is seeking to protect.

Similarly, if the Court, in later judgments, accepts the narrow interpretation of the concept of ‘direct participation’, as set out in the Labanga Case, it will have an effect on interpretation of the other provisions of the Rome Statute that use the term ‘direct participation’. Article 8(2)(b)(i) of the Rome Statute makes it a war crime to intentionally attack civilians “not taking direct part in hostilities” in international armed conflicts, and Article 8(2)(e)(i) sets out an identical provision relating to conflicts not of an international character. These provisions mirror those in the Additional Protocols.

An overly narrow understanding of ‘direct’ under the Rome Statute would mean that it is a war crime to attack any civilian (including a child) not engaged in front-line combat, including those who are engaged in scouting, sabotage and guarding military objectives. Under IHL the position is different, as outlined above, and those people (including children) who meet the criteria for direct participation may be attacked for the duration of that participation. In all likelihood, this will include those civilians engaged the activities discussed above. The result is that targeting a civilian engaged in scouting, sabotage or guarding military objectives (among other things) would be illegal under the Rome Statute but permitted under IHL. This creates uncertainty as to which regime might govern the actions of parties to a conflict: and the greater this level of uncertainty, the greater the potential for impunity.

These unintended consequences of the ICC’s Lubanga Case can potentially give rise to a serious and unnecessary conflict between the provisions of the Rome Statute and IHL. A fine balance needs to be struck on this issue and the ICC is in the unenviable position of controlling that balance. Great caution is needed in future decisions which rely on the Lubanga interpretation of ‘active’ and ‘direct’ in order to avoid a situation where the protection of an incredibly vulnerable children in armed conflict may be unintentionally reduced.