Guest Post: A Matter of Distinction: ‘active’ and ‘direct’ participation in hostilities and the war crime of using child soldiers

By Catherine Harwood, Leiden University

The Rome Statute prohibits the use of children under fifteen years to ‘participate actively in hostilities’ in international and non-international armed conflicts [arts. 8(2)(b)(xxvi) and 8(2)(e)(vii)]. Trial judgments in the Lubanga and Katanga cases interpreted ‘active participation’ broadly to include both ‘direct’ and ‘indirect’ participation in hostilities. Recently, Pre-Trial Chamber II committed Bosco Ntaganda to trial for charges including the use of child soldiers, and implicitly followed this approach. However, Mr. Lubanga is currently appealing his conviction, including on the basis that ‘active’ participation should be limited to ‘direct’ participation in hostilities.

This contribution argues that in light of the drafting history of the Rome Statute, the current interpretation of ‘active participation’ should be sustained. ‘Indirect’ participation which exposes children to real danger should be prohibited, without requiring a nexus between the activity and loss of civilian protection. This would preserve the intended ‘buffer zone’ of protection, so that children’s participation in risky combat-related activities is prohibited, even when they retain civilian protection.

In practice, the Rome Statute’s semantic inconsistencies, inherited from international humanitarian law (IHL), could be ameliorated by using ‘direct participation’ to denote the general limit of civilian protection, and ‘active participation’ to refer to the use of child soldiers. This approach would also encourage greater consistency between the English and French versions of the Statute.

  • Active and direct participation under international humanitarian law

In IHL, parties to an armed conflict must distinguish between civilians and military objectives, and attacks directed at civilians are prohibited. Civilians lose this protection when they take a ‘direct part in hostilities’ [Additional Protocol I, art. 51(3) and Additional Protocol II, art. 13(3)]. To make matters more complicated, the limit to civilian protection in Common Article 3 to the Geneva Conventions is ‘active’ participation. However, only the English texts contain this irregularity. The term participent directement (direct participation) is used consistently in the French texts, and ‘active participation’ is not recognised.  Nicole Urban suggests that this indicates “a uniform meaning across IHL”, and that ‘active’ and ‘direct’ are synonyms.

‘Direct participation’ is not defined in conventional IHL. The ICRC’s Interpretive Guidance provides a narrow definition which comprises a certain threshold of harm, direct causation of harm and a belligerent nexus [p. 93]. Direct participation generally encompasses activities likely to cause harm to the adversary’s military capacity or operations.

IHL also prohibits the participation of children in hostilities. AP I, art. 77(2) requires that children do not take a ‘direct’ part in hostilities. AP II does not contain any threshold: art. 4(3)(c) simply states that children must not ‘take part’ in hostilities. These rules are identical in English and French texts. The ICRC Customary Rules also articulate that customary international law simply prohibits children to “take part in hostilities”.

Why then does the Rome Statute specifically prohibit ‘active’ participation of children in hostilities, in both French and English? To understand this peculiar phrase it is necessary to revisit the statutory drafting history. Continue reading

David Scheffer proposes (legally) unsatisfactory solution for justice in Syria

In a Opinion Piece for the LA Times, David Scheffer, seasoned diplomat, esteemed and influential expert in International Justice issues, makes his own proposal to push forward for justice in Syria. Essentially, he proposes a treaty between the UN and a third state (i.e, not Syria):

The third option, proposed here, would require a treaty between the United Nations (acting by General Assembly vote) and a government committed to justice for the victims of these two conflicts. Neighborhood candidates such as Turkey, Jordan and even Lebanon or European nations such as France and Italy come to mind.


There also is precedent for such action. Three tribunals were created to bring to justice perpetrators of heinous crimes committed in Sierra Leone, Lebanon and Cambodia.

The Special Court for Sierra Leone, which recently fulfilled its mandate to prosecute crimes committed during its civil war in the 1990s, and the Special Tribunal for Lebanon in The Hague, focusing on the assassination of Lebanese Prime Minister Rafik Hariri in 2005, are international courts created under negotiated treaties between the United Nations and Sierra Leone and Lebanon, respectively.

The problem is that the three examples put forward by Scheffer are in fact very different in terms of their legal nature and sources of their authority. Indeed, from a technical perspective, the only treaty-body of the three is the Special Court for Sierra Leone (SCSL), established between the country and the UN. The other two tribunals, while a treaty with the UN was involved at some point, actually draw their authority from other sources. The Special Tribunal for Lebanon (STL) was created by the UNSC in 2007, following the non-ratification by Lebanon of the treaty meant to initially create the tribunal. The Extraordinary Chambers in the Courts of Cambodia (ECCC) are in fact a domestic court established through domestic legislation. It therefore makes no sense to lump them in together from a legal point of view.

Putting that aside, a proposed treaty based tribunal with a third state doesn’t really solve the legal obstacles that would arise. Scheffer continues his “demonstration” in the following way:

By ratifying and implementing such a treaty, the participating government would consent to the extraterritorial reach of its own law over the conflicts in Syria and Iraq. The tribunal could be established in the treaty nation or perhaps in The Hague. Faced with international crimes of such magnitude, and threats to regional security, such a government could justify its actions as protecting its national interest and applying conditional universal jurisdiction.

This is problematic. Either the proposed third state already has in its domestic law extraterritorial jurisdiction of sorts for international crimes and the treaty would not be necessary, either it doesn’t and the treaty would not change that. The same would be true of immunities, which I think would still remain in force, despite a treaty with the UN. I know there has been a lot of talk over the years on whether the ICJ, in the arrest warrant case, made an authoritative statement on the fact that immunities are not applicable in international tribunals, but I never found any of the arguments convincing. The same holds true in relation to arguments made along the lines that the support of the “international community” might give an added international cachet to a tribunal, thus allowing to bypass some international law rules such as immunities (see the Taylor Immunities decision at the SCSL), but that is equally unconvincing.

The bottom line is that Scheffer’s proposal is at best useless and at worst inaccurate from a legal perspective. The fact is that the only solution to bypass Syria’s lack of consent to trials, apart from unilateral domestic proceedings by countries having adopted the legal tools to that effect, is through the creation of an ad hoc tribunal by the UNSC under Chapter VII.

I know Scheffer’s proposal was not made in an academic publication, but the dumbing down for a broader audience can only go that far before become disinformation.

This proposal joins others that have been made over the years, for which I have been skeptical for various different reasons. A draft statute for an ad hoc tribunal was put forward a little while back which was a legal mess and I’ve already expressed my doubts at whether a referral to the ICC would make much sense.

I remain convinced that this conversation is premature and that if states are serious about “justice for Syria” today, it should mean first and foremost to actually put an end to the commission of the crimes. To be clear, I’m not advocating for unilateral intervention without UNSC authorization. I’m saying that states should stop hiding behind the limitations of law to not do what they think is morally and ethically right. They should leave international justice where it is, as an ex post facto institution with limited effect, rather than drag it in the already complex discussion on how to deal with ongoing conflict resolution.

H/T to Kevin Jon Heller

Rehabilitating Judge Ramaroson in the Perisic/Sainovic controversy

In the context of writing a commentary on the whole Perisic/Taylor/Sainovic controversy, I had to reread all the judgments and separate/dissenting opinions. I’ll let you discover my views when the commentary is published, but wanted to share one thought with you here.

I’m the first one to criticize international judges (some might even say exaggeratedly) when I find their legal reasoning unconvincing, so it is only fair to occasionally point out when they are being the target of somewhat unfair attacks.

I think this is the case of Judge Ramaroson. You may recall that she was part of the majority both in Perisic and Sainovic, which has led to some criticism from commentators and observers.

For example, William Schabas has argued that:

Judge Ramaroson, who sat in both Perišić and Šainović agreed with the majority judgment in both cases. I would not use the word ‘unequivocal’ to describe such a strange situation. Judge Ramaroson might have enlightened us with a separate opinion to explain the change of heart.

Along the same lines, Alex Fielding has observed the following:

It’s interesting that Judge Ramaroson went from saying that specific direction is an element of the mens rea of A/A liability in Perisic, to joining the Majority decision in Sainovic which unequivocally states that specific direction is not an element of A/A liability, either for the actus reus (“practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime”) or mens rea (“knowledge that these acts assist the commission of the offense”). I couldn’t find any discussion of specific direction in the mens rea analysis,  or whether it is considered to be implicit in the knowledge standard (eg. knowledge of assistance going to ‘specific’ crimes committed), but you would think Judge Ramaroson would insist on including specific direction as part of the mens rea analysis (or file a separate opinion to this effect).

In fact, I think both comments are somewhat unfair, especially the first one. If you read Ramaroson’s separate opinion in Perisic, it is clear that she dissented from the majority on the inclusion of “specific direction” as an element of the actus reus of aiding and abetting. It is only a “separate” opinion rather than a “dissenting” opinion because she agreed with the final result, i.e, the acquittal of Perisic. This raises the question of whether judges, in order to constitute a majority, should only agree on the outcome (as is traditionally the case) or also on the legal reasoning. I would argue that it should be both, if not it is not really a majority. Indeed, can 2 people who think the universe is expanding, one because of the big bang theory and the other because God decided so, really be said to “agree”? In any case, that is a different issue, and it unfair to say that Judge Ramaroson “disagrees with herself”, as claimed by William Schabas.

As to Alex Fielding’s comment, I would have two comments. First of all, Ramaroson’s separate opinion, while indeed linking (correctly in my view) “specific direction” to the mens rea of aiding and abetting, never explicitly says it should be an element of the mode of liability as such. Second of all, Judge Ramaroson considers that the “specific direction” question is mostly relevant in cases of remoteness of the accused from the crimes. However, as noted by the judges themselves in Sainovic (footnote 5320), no such issue of remoteness arose from the facts of the case, so it is not necessarily that surprising that no mention of “specific direction” was including in the mens discussion, nor that Judge Ramaroson did not include a separate opinion on this point.

Why a Syria UNSC Referral to the ICC is not necessarily a good idea (and why we should be allowed to say that)

I’ve so far stayed away from the online discussions on the draft resolution for a UN Security Council Referral of the Syria situation. My impression was that any comment on the content of the draft was essentially science fiction, as there is little chance that the Resolution will pass, given that Russia is likely to veto it.

(on the substance, briefly, 1) I don’t share Kevin Jon Heller’s criticism of the UNSC not wanting to finance their referrals. The drafters of the Rome Statute wanted UNSC referrals, I think it was a bad idea, and possibly one that is contrary to international law, but they got it and cannot now complain, in my opinion and 2) in relation to possible limitations to the personal jurisdiction of the Court in the Resolution, I already expressed here, in relation to Libya, my thoughts that such limitation does not render the referral illegal, it merely raises a question of opposability in case someone falling within it were to be prosecuted)

However, given the last few days of online frenzy on the promotion of the referral in preparation for tomorrow’s vote, it is difficult to resist any longer. As summarized here, nearly 60 countries seem to support the referral as well as a high number of NGOs, who consider that a referral is the best way to bring justice to victims of the Syrian civil war. This is creating considerable peer pressure and States who do not publicly support this effort are considered to be necessarily “wrong”:

I am however not convinced by this quasi-unanimous call for the ICC to intervene in Syria, and this for several reasons.

1) From the perspective of the ICC

I don’t really see why the ICC would want to get involved in that situation. While a referral might be publicly welcomed by Court officials, I can only imagine the anxiety attacks that people at the institution, especially at the OTP, must be going through at the mere thought of the referral being approved. Investigating crimes in a serious manner in Syria right now would be a logistical nightmare, that probably would make Darfur look like a walk in the park.

Putting logistics aside, I’ve heard people say that this would be an opportunity for the ICC to get out of Africa. But I don’t see how this would be a good place to start, given the complex geopolitical considerations at play in the region. I think that dragging the ICC into this seriously polarized political conflict would ultimately (rightly or wrongly, but that is not the point) affect its credibility. I recently told a diplomat I met in the Hague that if his country really supports the ICC, it should oppose a referral of the Syria. I hope he did…

2) From a broader perspective: the ICC and conflict resolution

More generally, I naively remain amazed at how the ICC has now automatically become part of all conversations on any conflict situation. It is too big a discussion to go into here in too much detail, but the ICC has been integrated in all kinds of debates about transitional justice, jus post bellum and RP2. However, the link between international prosecutions and political transitions remains to be convincingly established in my opinion. Or at the very least, someone should justify on more solid ground than “we need to bring justice to victims” why such prosecutions can and should have such a central role in conflict and post-conflict situations.

This is particularly true in a case of ongoing crisis as in Syria. I don’t honestly see how a referral to the ICC will make any difference to the humanitarian crisis that has been unfolding for the past years. It looks like a veil for the inactivity of the international community in not doing anything to put an end to the atrocities. When someone is being beaten up in the street, you don’t send a judge, you send a policeman.

In relation to this,  supporters of the referral mention a possible deterrent effect. But this argument is always very shaky. Even if one buys the idea (disputed by many) that criminal law in general can have a deterrent effect, this will only be the case in a pacified society when criminal activity is the exception rather than the norm. This is hardly transposable to a conflict situation, where there is hardly any social contract remaining in which a pacified and socially accepted application of criminal law might have a deterrent effect.

In addition to that, I don’t see the evidence of such an effect to date. I must have missed the memo that shows that eastern Congo, the Central African Republic, Darfur or Uganda are now havens of peace thanks to ICC intervention…

This is not to say that accountability issues should not be part of the discussion at all. There is no denying that impunity no longer seems to be a credible policy option in any political transition. But there is a important chronological dimension that cannot be ignored. There is a right timing for implementing the different components of a transition, and, to make things more complicated, that timing is never the same in each case. But we do need to accept that not everything can be done immediately in dealing with a situation such as Syria. My feeling is that the most irrelevant action to take right now is a referral to the ICC. Other actions (military and/or diplomatic) would seem to be obvious priorities here. And I suspect that these considerations, rather than some vicious moral failure, lies at the heart of why virtuous states such as Sweden or Canada are not supporting the referral at this point in time.

Mark Kersten is, as usual, more careful and measured than I am in discussing this issue here, noting that we don’t know enough on the possible positive or negative effects of ICC intervention in various situations. This might be true to some extent, but I do think that the burden lies on those supporting the ICC to show that it does indeed have the promised positive effect.

In that respect, what ultimately continues to bother me is that supporters of the ICC have, in my opinion, oversold what this Court can do. As a result, the first thing you see in the press when some unrest occurs somewhere is a call for the ICC to intervene (see recently in Ukraine). This leads, in my view, to a dumbing down of discussions of complex situations, which need to be broken down into digestible “good vs bad” and “victim vs perpetrator” categories which simply do not reflect the reality of what is going on, nor help make policy choices and as a consequence prepare a manageable political transition. Indeed, not everything can be seen through the lens of international criminality when dealing with a political situation. If not, because both sides to a conflict are likely to commit crimes, does it mean that one supports no one? It’s like saying that because both sides in the second world war committed war crimes, that we cannot choose sides between them. Of course we can.

Some years ago, when the Ivory Coast post-electoral violence was unfolding, I asked the question of how to distribute responsibility among a myriad of possible entities. Ultimately, it raises the following question: if all those who committed crimes in civil wars are put in jail, who will be in charge of the transition? It might seem like a simplistic question, but I still have not received an adequate answer…


The Dream Factory Strikes Again: the Special Tribunal for Lebanon recognizes International Criminal Corporate Liability

From the Tribunal that brought you an international customary law of terrorism and trials in absentia, a new dream has come true: international criminal corporate liability…

Last week, the Special Tribunal for Lebanon made public a January decision in relation to the initiation of contempt proceedings for the publication, among other things, of alleged witnesses.

There isn’t much point in revisiting here the idea itself that judges are free to include issues of contempt into the rules of procedure and evidence, on the basis of “inherent powers”, even when it is not in the Statute. That ship has apparently sailed since the ICTY, even if it is noteworthy that both the MICT and the ICC include such issues in the statute rather than the rules, which would tend to show that this might not be such an “inherent power” after all. I discuss this issue at more length here.

In fact, while a strong defender of a strict interpretation of the principle of legality, I agree with Judge Baragwanath that it is not an issue in the particular instance because, however shoddy their legal foundations may be, contempt prosecutions have been around for a while now in international criminal proceedings and therefore no defendant can reasonably claim that it was not foreseeable that such proceedings would possibly be initiated for conduct such as the one under consideration here.

I won’t delve either on the discussion on the compatibility of the contempt provisions with freedom of the press. As a argue here, international judges misapply, in my view, the proportionality test that is required by human rights case law, when a balance needs to be struck in the curtailing of some rights. Judge Baragwanath’s reasoning, which is done in the abstract, essentially implies that the application of rule 60bis can NEVER violate the freedom of the press because “the media must comply with the law” (decision, §16). However, the proportionality test should be applied on a case by case basis and there cannot be a blanket seal of approval for any provision.

No, what really deserves attention is this new revolution proposed by the STL: the recognition that legal persons can be the target of contempt proceedings. In other words, the STL has now recognized corporate liability in international criminal law. As Judge Baragwanath acknowledges in the decision, this is a first in contempt proceedings, so it required some explanation on his part. Continue reading