On 1 December 2014, the Appeals Chamber at the International Criminal Court (ICC) upheld the conviction of Thomas Lubanga as a co-perpetrator for the crime(s) of conscripting and enlisting children into an armed group and using them to participate actively in hostilities. The Judgment and its dissenting opinions provide an interesting reflection on various legal and evidentiary issues. Among them is the problematic definition of actively using children in hostilities. While the Appeals Chamber confirmed the conviction of Mr Lubanga on this ground, it rejected Trial Chamber I’s interpretation of active use. Primarily the Appeals Chamber determined that the interpretation of the concept of active use in Article 8(2)(e)(vii) is distinct from the concept of direct or active participation for the purposes of the principle of distinction;[1] the Court held that the provision needs to be examined independently in the light of its purpose to protect children. Secondly, while the Appeals Chamber confirmed that it is appropriate to conduct a case-by-case assessment to determine what acts fall within the definition of active use, it rejected the Trial Chamber’s risk-based approach.

Although the popular portrayal of a young child wielding a menacing weapon is a prevalent representation of child soldiers, the reality is much more complex; it has been suggested that “[c]ontrary to popular conceptions, many child soldiers never fight, […]carry their own weapon [or] know how to use one. Children’s roles vary according to the context and children’s characteristics”.[2]  Therefore, since a child can be involved in hostilities in ways other than through active combat, defining the scope of active use can be difficult.

Under Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Rome Statute the “child soldiers” crime[s] consist[s][3] of “[c]onscripting or enlisting children under the age of fifteen […] or using them to participate actively in hostilities”. Neither the Statute nor the Rules of Procedure and Evidence provide much guidance about the activities which might constitute active use. Restricting the definition of active use to children who are engaged in combat insufficiently reflects the role of children in armed conflict. At the same time, drawing the line between, on the one hand, indirect active use and, on the other hand, participation which is not actively linked to the armed conflict is not straightforward.

The direct and active use conundrum in IHL and ICL

Under International Humanitarian Law (IHL), the participation of children in hostilities was first regulated under the Additional Protocols to the Geneva Conventions. Article 77(2)  of Additional Protocol I (AP I) obliges States to take “all feasible measures” to ensure that children under 15 are not recruited into the armed forces and “do not take a direct part in hostilities”, while Article 4(3)(c) of Additional Protocol II (AP II) prohibited the recruitment of children and provided that they “shall […][not be] allowed to take part in hostilities”.

Under International Human Rights Law (IHRL), Article 38 of the Convention on the Rights of the Child echoes the provision in API on children’s direct participation in hostilities. The Optional Protocol  to the Convention on the Rights of the Child on the involvement of children in armed conflict has a similar provision and also stipulates that non-state armed groups “should not[…]use in hostilities persons under the age of 18 years.

Under Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Rome Statute, and the Article 4(c) of the Statute for the Special Court of Sierra Leone, reference is made to the active use of children in hostilities rather than their direct participation or participation/use (generally) referred to under IHL and IHRL instruments.

The divergence in the language has created some confusion regarding whether there is a distinction between direct use and active use of children. Since the Rome Statute does not provide any guidance, the Trial Chamber in Lubanga, echoing an earlier decision of the SCSL in the AFRC case, turned, inter alia, to the travaux préparatoires. In particular, it referred to a footnote in the Zutphen Draft which noted that:

“[t]he words “using” and “participate” have been adopted in order to cover both direct participation in combat and also active participation in military activities linked to combat such as scouting, spying, sabotage and the use of children as decoys, couriers or at military checkpoints. It would not cover activities clearly unrelated to the hostilities such as food deliveries to an airbase or the use of domestic staff in an officer’s married accommodation”

The Chamber, therefore, held that active participation was “clearly intended” to be wider than direct use and would include using children “in a myriad of roles that support the combatants”.[4] The Trial Chamber in Katanga and the Pre-Trial Chamber in Ntaganda followed this approach.[5]

Trial Chamber I was strongly criticised for its juxtaposition of “active participation” under Article 8 of the Statute and “direct participation” under AP I. The concept of direct and active participation is not only found in the provisions of child soldiers; it is a crucial element of the principle of distinction. In particular, Article 51(2) of AP I and Article 13(3) of AP II provide for the protection of civilians who are not taking direct part in hostilities, while Common Article 3 to the Geneva Conventions protects those “taking no active part in the hostilities”. It has been argued that both terms are used interchangeably in IHL and the Trial Chamber’s distinction between active and direct participation was incorrect. Moreover, it was argued that a wide interpretation of active participation might negatively impact the protection of civilians under Common Article 3 of the Geneva Conventions and Article 8(c) of the Rome Statute. In a similar vein, it was argued that if under the Rome Statute, direct participation is construed very narrowly, an attack on persons who are directly participating (in the broader sense under the IHL definition) could be considered legal under IHL but illegal under the definition adopted at the ICC.[6]

The Appeals Chamber disagreed with Trial Chamber I’s distinction and observed that, under Common Article 3 of the Geneva Conventions, the terms active and direct are interchangeable.[7] At the same time, the Appeal’s Chamber held that the Court is not bound to apply the same definitions of active or direct participation in the context of the principle of distinction for the purposes of determining whether children’s contribution to an armed conflict constitutes active participation.[8]

The Appeals Chamber held that despite the difference in terminology, the provisions in AP I and the CRC, which prohibit the direct use of children, and that under APII, which prohibits the use of children, are all clearly aimed at ensuring that children are not involved in the conflict.[9] While the terminology related to the principle of distinction is similar, the context is different; therefore, the interpretation of the “active use” of children in hostilities should reflect this specific purpose in its own right.[10] In taking this approach, the Appeals Chamber has severed the interdependence of the interpretation of direct/active participation in the context of child soldiers from that associated with the principle of distinction. While it might be argued that this may lead to a fragmentation of the notion of active and direct participation within the Statute, it could be suggested that this approach manages to strike the right balance between the interests of the child (which are best protected under a wider interpretation of active participation), the protection of civilians (who benefit from a more restrictive interpretation of active/direct participation), and the rights of the accused (whose liability might be extended, if the Trial Chamber’s restrictive interpretation of direct participation were applied to the principle of distinction).

Reversal of the risk-based approach to indirect participation

In identifying whether children are being used actively in hostilities, the difficulty lies in determining what acts, beyond direct engagement in combat, are prohibited. The Trial Chamber deviated from the approach at the SCSL of listing specific acts which might constitute active use, relying instead on a case-by-case assessment.

While the Trial Chamber nodded to the requirement in the Rules of Procedure and Evidence that a link with the conflict is required,[11] it established that “the decisive factor […]in deciding if an “indirect” role is to be treated as active participation in hostilities is whether the support provided by the child to the combatants exposed him or her to real danger as a potential target”.[12] The Trial Chamber, therefore, determined that it was a combination of the “child’s support” and the “level of consequential risk” that rendered them actively, if indirectly, involved in the hostilities.

Following the Judgment, this approach did find some support because of the wide safety net it provided for children. However, the Appeals Chamber rejected the risk-based approach, stating that neither provisions in the Statute, nor the corresponding IHL principles link the determination of active participation of children to the element of risk.[13] Instead, the Appeals Chamber focused exclusively on the nexus between the hostilities and the activities performed by the child. It maintained that although the level of risk a child is exposed to might be indicative of the relationship between the activity and the conflict, it could not replace the determination based on the nexus to the conflict itself.[14]

It is noteworthy that although the Appeals Chamber disagreed with the Trial Chamber’s theoretical approach, it did find that, in most of the activities upon which the Trial Chamber based its conviction, the nexus requirement was actually fulfilled. In the light of “the complex and unforeseeable scenarios presented by the rapidly changing face of warfare”, the Appeals Chamber also confirmed the case-by-case determination favoured by the majority in the Trial Chamber.[15]

In conclusion, while the Appeals Chamber has reframed the definition of “active use” in relation to child soldiers, it did not overturn the Trial Chamber’s findings of guilt. Its views will, however, undoubtedly shape the normative development of the crime. The Trial Chamber will have the opportunity to consider Article 8(2)(e)(vii) again in the case against Bosco Ntaganda which is set to start in June 2015.

[1] Applicable in a non-international armed conflict; By extension this would also apply to Article 8(2)(b)(xxvi) Applicable in an international armed conflict
[2] M.G. Wessels, “Child Soldiers from Violence to Protection”, 2006, 71
[3] There is some debate as to whether the acts constitute 1 crime with three alternate actus reus or whether they constitute 1 crime. See Judge Song’s dissenting opinion in the Lunaga Appeals Judgment
[4] Paras 627-628
[5] Articles 1043-1045
[6] See Also S. Vite, “Between Consolidation and Innovation: The International Criminal Court’s Trial Chamber Judgment in the Lubanga Case”, Yearbook of International Law 2012
[7] Article 323
[8] Para 324
[9] Para 326
[10] Para 327
[11] Para. 621
[12] Para. 628
[13] Para 333
[14] Para 333
[15] Judge Odio Benito had disagreed with this point in her dissenting opinion to the Trial Chamber’s Judgment in Lubanga