A Gender Perspective on the War Crime of Using Child to Participate Actively in Hostilities

Temps de lecture : 6 minutes

A Gender Perspective on the War Crime of Using Children to Participate Actively in Hostilities

26.04.2020

 

By Justine Lefeuve

 

The Use of Children in Warfare and International Law

The civilianization and urbanisation of modern armed conflicts have led to an increasing number of children being involved in warfare and being affected directly by the violence of said conflicts.^[1]Wenger and Mason, ‘The Civilianization of Armed Conflict: Trends and Implications’, International Review of the Red Cross, Volume 90 Number 872, 2008, p. 842. Despite the difficulty to assess precisely how many of them are used by armed forces and armed groups, it is estimated that around 300.000 children are currently concerned by this situation.^[2]Waschefort, International Law and Child Soldiers, Oxford: Hart Publishing, 2015, p. 26. Children are recruited and used for several different tasks: as combatants on the front lines, but also as cooks, messengers and porters, inter alia.^[3]Yuvaraj, ‘When Does a Child ‘Participate Actively in Hostilities’ under the Rome Statute? Protecting Children from Use in Hostilities after Lubanga’, Utrecht Journal of … Continue reading International law prohibits the use of children in warfare. As provided in the Rome Statute of the International Criminal Court (ICC), it is a war crime to use children under the age of fifteen to participate actively in hostilities, whether it is during an international or a non-international armed conflict – articles 8 (2) (b) (xxvi) and 8 (2) (e) (vii) respectively.^[4]Rome Statute of the International Criminal Court, United Nations, Treaty Series, Volume 2187, Number 38544, 17 July 1998, p. 6 and 7.

However, the notion of “active participation in hostilities” is not defined in the Statute of the Court.  There is a lot to be gained by the clarification of this provision. A strong international law response is needed to both prevent and punish the use of children in hostilities in order to enhance the legal protections of this particularly vulnerable group.^[5]Waschefort, International Law and Child Soldiers (supra note 2), p. 5. A clear determination and delimitation of the specific standard of ‘active participation in hostilities’ could strengthen the present prohibition of using children in armed conflicts.

The Participation of Girls in Armed Conflicts

The question of gender is one that is often overlooked when talking about child soldiers. It is clear that girl child soldiers are frequently used, either by non-state armed groups or by regular armed forces, but their role is usually different than boys’. Indeed, while they may be combatants in some situations, they are mostly used as ‘bush wives’ or sex slaves.^[6]Grey, ‘Sexual Violence Against Child Soldiers – The Limits and Potential of International Criminal Law’, in International Feminist Journal of Politics, Vol. 16, No. 4, 2014, p. 608. It is thus of paramount importance to determine whether such activities, mostly performed by girls during armed conflicts, could fall into the scope of the notion of ‘active participation in hostilities’. If it does, it would mean that individuals found guilty of using girls for sexual and/or marital purposes could be prosecuted by the ICC for the war crime of using children to participate actively in hostilities.

The first question that arises when examining this question is whether international law protects children against their own armed forces. Indeed, usually, international humanitarian law and international criminal law prohibit and criminalise the violations against children committed by the enemy forces, not the troops they are part of. For that reason, the Defence of  Bosco Ntaganda, who was the former military chief of an armed militia group operating in the Democratic Republic of Congo, argued that, since “international humanitarian law is not intended to protect combatants from crimes committed by combatants within the same group”, acts of sexual violence against children cannot be charged as a war crime if such violence was committed by the armed group they belong to.^[7]Prosecutor v. Bosco Ntaganda, Second Decision on the Defence’s Challenge to the Jurisdiction of the Court in respect of Counts 6 and 9, ICC-01/04-02/06, 4 January 2017, para. 20 In the end, the Court disagreed with this statement and declared that international law also protects children from the actions of their own armed forces.^[8]Prosecutor v. Bosco Ntaganda, Second Decision on the Defence’s Challenge to the Jurisdiction of the Court in respect of Counts 6 and 9 (supra note 7), para. 53.

Sexual Violence and Forced Marriages as a form of Active Participation in Hostilities?

Now that it has been determined that children are also protected from their own armed forces in international law, it is necessary to establish whether sexual violence and forced marriage can amount to ‘active participation in hostilities’ and thus constitutes a war crime under articles 8 (2) (b) (xxvi) and 8 (2) (e) (vii) of the Rome Statute.

The ICC failed to rule explicitly on this point in the Lubanga case – the first case ever heard by the Court dealing with Thomas Lubanga, who was accused, inter alia, of having enlisted and used children in the armed conflict in the DRC. Nevertheless, Judge Odio Benito argued, in her dissenting opinion, that the scope of the notion of ‘active participation in hostilities’ should be broadened to include children who have experienced sexual violence within the armed group they were enrolled in.^[9]Prosecutor v. Thomas Lubanga Dyilo, Judgment Pursuant to Article 74 of the Statute, ICC-01/04-01/06-2842, 14 March 2012, Lubanga Trial Judgment, Separate and Dissenting Opinion of Judge Odio Benito, … Continue reading She emphasized the importance to develop a more comprehensive legal definition of the concept of active participation in order to reinforce children’s protections in warfare.^[10]Prosecutor v. Thomas Lubanga Dyilo, Judgment Pursuant to Article 74 of the Statute (supra note 9), Separate and Dissenting Opinion of Judge Odio Benito, p. 613, para. 15. Her reasoning was that “sexual violence is an intrinsic element of the criminal conduct of ‘use to participate actively in the hostilities’” and that “girls who are used as sex slaves or “wives” of commanders or other members of the armed group provide essential support to the armed groups”.^[11]Prosecutor v. Thomas Lubanga Dyilo, Judgment Pursuant to Article 74 of the Statute (supra note 9), Separate and Dissenting Opinion of Judge Odio Benito, p. 613, para. 20-21. For that reason, this type of violence should be encompassed in the war crime of using children – failing to do so would be discriminatory against girls who remain the main victims of sexual violence.^[12]Prosecutor v. Thomas Lubanga Dyilo, Judgment Pursuant to Article 74 of the Statute (supra note 9), Separate and Dissenting Opinion of Judge Odio Benito, p. 614, para.20; Sturesson, ‘Dismantling … Continue reading

However, the Court decided that such analysis would go “clearly beyond the ordinary meaning of the wording” and would result in a violation of the principle of nullum crimen sine lege which requires that individuals can only be prosecuted for an act which was clearly prohibited at the time of its commission.^[13]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’, Goettingen Journal of International … Continue reading In the Ntaganda case, the ICC finally ruled on the issue of forced marriage and sexual violence against children. It was concluded that such acts cannot be considered as active participation but rather that it amounts to the war crime of committing rape and
sexual slavery under Article 8(2)(e)(vi) of the ICC Statute.^[14]Prosecutor v. Bosco Ntaganda, Decision Pursuant to Article 61 (7) (a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, ICC-01/04-02/06, 09 June 2014, para. 20. The Chamber decided that rape and sexual enslavement cannot be considered as active participation in hostilities during the specific time of their commission since “the sexual character of these crimes, which involve elements of force and coercion or the exercise of rights of ownership, logically preclude active participation in hostilities at the same time”.^[15]Prosecutor v. Bosco Ntaganda, Decision Pursuant to Article 61 (7) (a) and (b) of the Rome Statute on the Charges (supra note 11), para.

Concluding Remarks

In sum, girls being used for sexual and matrimonial purposes cannot be considered as participating actively in hostilities and therefore, individuals responsible for such acts cannot be held criminally liable under the war crime of using children in armed conflicts. While it may appear disappointing that the ICC decided to narrow the scope of ‘active participation’ to exclude such behaviours, it is actually very encouraging that the questions of forced marriages and sexual violence against children, and particularly girls, are emerging as one of the key issues in international criminal law. This is the result of a growing trend in international law that is increasingly protecting women and girls against all forms of violations of their rights.

To quote this article : Lefeuve Justine, ” A Gender Perspective on the War Crime of Using Child to Participate Actively in Hostilities ​”, 26.04.2020, Gender in Geopolitics Institute.