Guest Post: A Matter of Distinction Part II: participation of children in hostilities following the Lubanga Appeal Judgment

[I’m delighted to welcome Catherine Harwood again with her thoughts on the recent Lubanga Judgment’s take on active participation in hostilities]

  • Introduction

On 1 December 2014, the Appeals Chamber of the International Criminal Court dismissed Mr Lubanga’s appeals against conviction and sentence. Mr Lubanga had been convicted of the war crimes of enlisting and conscripting of children under the age of fifteen years and “using them to participate actively in hostilities” under Article 8(2)(e)(vii) of the Rome Statute, and was sentenced to 14 years imprisonment.

Mr Lubanga’s grounds of appeal included that the Trial Chamber had misconstrued the concept of ‘active participation in hostilities’ in Article 8(2)(e)(vii). In a previous post I discussed his appeal and supported the distinction made by the Chamber between ‘active participation’ in Article 8(2)(e)(vii) and other manifestations of ‘active’ or ‘direct’ participation in hostilities in international humanitarian law (IHL). I cautioned against the adoption of a unitary concept, writing that it was preferable to retain this distinction in light of the drafting history and purpose of Article 8(2)(e)(vii). I argued in favour of a bifurcated approach “in order to discourage the use of children in roles that place them in harm’s way, while also preserving their status as protected persons until they participate directly in hostilities.”

This contribution follows up on that post, after the delivery of the Appeal Judgment. In upholding the  conviction and sentence, the Appeals Chamber endorsed the distinction between ‘active participation’ in Article 8(2)(e)(vii) and the notion of ‘direct participation in hostilities’. However, it concluded that the Trial Chamber had erred in its interpretation of ‘active participation’. This contribution argues that despite some elements of ambiguity, the Appeals Chamber’s ‘link to combat’ approach is workable and appropriately connected to the underlying protective purpose of the prohibition.

  • Background to the Appeal Judgment

The Rome Statute prohibits the use of children under fifteen years to ‘participate actively in hostilities’ in international and non-international armed conflicts, pursuant to Articles 8(2)(b)(xxvi) and 8(2)(e)(vii). I discussed these provisions and relevant rules of IHL in my previous post, so will just make a couple of observations to avoid going too much over old ground.

First, the Rome Statute’s prohibition of ‘active participation’ of children in hostilities adopts similar language to that in Common Article 3 to the Geneva Conventions, which uses the phrase ‘persons taking no active part in the hostilities’ to distinguish combatants from protected civilians. However, Additional Protocol I and the French version of Common Article 3 use the term ‘direct participation in hostilities’ to denote loss of civilian protection. I will use the term ‘DPH’ to refer to the loss of civilian protection.

Secondly, in the drafting process of the Rome Statute, the Preparatory Committee stated that Article 8(2)(e)(viii) was intended to include “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…”

A key question for the Trial Chamber was whether ‘active participation’ in Article 8(2)(e)(vii) was synonymous with DPH. Was the use of children only prohibited in respect of activities for which they lost civilian protection, or did the prohibition extend to other types of activities? The Chamber took the latter approach, interpreting Article 8(2)(e)(viii) as including both ‘direct’ and ‘indirect’ participation. ‘Indirect’ participation was where support provided by a child to combatants “exposed him or her to real danger as a potential target”, although absent from the immediate scene of the hostilities (§628).

Mr Lubanga appealed against this aspect of the Trial Judgment on two grounds: first, that the Trial Chamber wrongly interpreted Article 8(2)(e)(vii) by including ‘indirect’ modes of participation; and secondly, by holding that whether ‘indirect’ roles amounted to ‘active participation’ turned on the risk faced by the child. The Defence submitted that ‘active participation’ was synonymous with DPH, so that a child had to contribute to the military operations or capacity of a party to the conflict, and that he or she had to participate in combat or be present on the battlefield.

For its part, the Prosecutor submitted that the Trial Chamber’s interpretation was correct and in conformity with the principle of legality and IHL. The Prosecutor further argued that the Defence’s interpretation of DPH was narrower than that recognised in IHL, and that should the Appeals Chamber adopt the IHL definition, all activities undertaken by children in the case at hand fell within its scope.

  • Appeal Judgment

The Appeals Chamber emphasised that Article 8(2)(e)(vii) had to be interpreted in light of its purpose. Although ‘active’ and ‘direct’ participation were generally used interchangeably in IHL to denote loss of civilian protection, Article 8(2)(e)(vii) did not necessarily have  to be given the same interpretation, as its purpose was to protect children “from being used to ‘participate actively in armed hostilities’ and the concomitant risks to their lives and well-being.” The Chamber concluded that Article 8(2)(e)(vii) should not be interpreted “so as to only refer to forms of direct participation in armed hostilities, as understood in the context of the principle of distinction and Common Article 3” (§328).

While agreeing with the Trial Chamber that ‘active participation’ was broader than DPH, it disagreed that danger to the child was the touchstone. The Chamber refrained from adopting the Trial Chamber’s vocabulary of ‘direct’ and ‘indirect’ participation, holding that “the crime of using children to participate actively in hostilities requires the existence of a link between the activity and the hostilities” (§333).  While the degree of risk might indicate the existence of such a link, “an assessment of such risk cannot replace an assessment of the relationship itself” (§333). On the facts, the use of children as military guards and bodyguards had sufficient links to active combat zones and so were prohibited (§337). However, the special ‘Kadogo unit’, comprised principally of children, was not sufficiently linked with combat to amount to ‘active participation’ (§338).

  • Discussion

The Appeals Chamber’s interpretation is attractive for several reasons. It more closely resembles the wording of Article 8(2)(e)(vii), particularly when compared with that of the Trial Chamber. Although the risk-based approach championed the provision’s protective purpose, it was not obvious on the face of the provision and may not have been reasonably anticipated by potential defendants. It also reflects the emphasis on the link with combat mentioned in the Draft Statute, cited above. In this sense, the Appeals Chamber’s approach better reflects what states thought they were agreeing to.

Importantly for those concerned with real-world workability, a ‘link-to-combat’ test may be easier to apply in the fog of war than an assessment of the risks involved in a particular activity. While the ‘risk of harm’ touchstone is arguably more closely related to the prohibition’s underlying protective purpose, it might be difficult to assess whether a particular activity poses such a risk. Despite the reduced emphasis on the danger faced by the child, mitigation of harm remains relevant, as activities linked with hostilities might generally be riskier than those away from the combat zone, and may discourage the presence of children in such environments.

There is however a degree of ambiguity in the Appeals Chamber’s approach. What exactly must an activity be linked to, and what type of link is relevant?

At §333, the Chamber refers to the need for a link between “the activity and the hostilities”. It is questionable whether the use of children in or near valuable military objectives that are removed from a conflict zone would be proximate. The Trial Chamber’s risk-based approach could cover such situations. It might be arguable that such use would give rise to a sufficient link to ‘hostilities’ in general. However, the Appeals Chamber seemed to require a connection to the combat zone. At §340, the Chamber noted the necessity for a link with “the combat in which the armed force or group of the perpetrator is engaged” (emphases added), and its factual findings regarding particular activities rested on proximity with “active conflict zones”. This focus was also suggested in the Draft Statute, which stated that Article 8(2)(e)(vii) excluded activities “clearly unrelated to the hostilities such as food deliveries to an airbase” but did include the use of children “as bearers to take supplies to the front line”.

Regarding the type of link required, the ICRC has identified three notions of proximity: causal, temporal and geographic (p. 55). The Appeals Chamber did not clearly articulate which concept/s it relied upon, but appeared to have regard to temporal and geographic proximity (whether activities were undertaken near actual fighting) rather than causal proximity (whether the activity was likely to harm the adversary). Conversely, according to the ICRC, it is causal proximity which is crucial to the assessment of DPH, while temporal and geographic proximity may be relevant but are not determinative.

This further reveals the distinction, affirmed by Appeals Chamber, between ‘active participation’ in Article 8(2)(e)(vii) and DPH. On the Appeals Chamber’s approach, it is not necessary for an activity amounting to ‘active participation’ to imply loss of civilian protection. This accords with the commentary to Additional Protocol II which states that children’s participation is prohibited in “gathering information, transmitting orders, transporting ammunition and foodstuffs, or acts of sabotage” (§4557, emphasis added).  Not all those activities may amount to DPH, which, according to the ICRC, must satisfy a three-part test. One of those requirements is that “the act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm).” The ICRC observed that while provision of food and shelter might be “indispensable to harming the adversary”, they do not reflect the required threshold of harm, and that this also excludes “production and transport of weapons and equipment unless carried out as an integral part of a specific military operation designed to directly cause the required threshold of harm” (p. 53).

In short, the Appeals Chamber’s interpretation of Article 8(2)(e)(vii) prohibits DPH, but also prohibits the use of children in respect of activities linked to combat, where there is no attendant loss of civilian protection. By doing so, the Appeals Chamber discourages the use of children in roles likely to place them in harm’s way, while also preserving their status as protected persons until they participate directly in hostilities.

Post Conflict Justice and the ICC: some thoughts on false expectations and the illusion of staying together “for the kids”

At the end of last week, I attended a very interesting conference organised by the Grotius Centre of Leiden University on the “Impact and Effectiveness of the International Criminal Court”, the final conference of a several year project on post conflict justice and local ownership. The wide-ranging list of speakers covered a large number of topics, such as the question of legacy of the ICC, the insertion of the ICC in the restorative justice and peace debates or the operation and impact of the principle of complementarity.

I was privileged to be able to present my thoughts on complementarity which I called “a tale of false promises and mixed up chameleons”. You can read an extended version of my speaking notes here, on the excellent new website on post conflict justice ( launched at the conference. In them, I analyse the current case-law on the issue and suggest that it does not allow the principle to realize the broader goals assigned to the ICC of promoting the rule of law and local ownership.

Ultimately, however, I question whether these goals should be assigned to the ICC as a function in the first place in the following way:

Of course, when I say this, I take on face value these wider objectives attached to the ICC. But these can also be questioned. It is one thing to say that the ICC can, on a systemic level, contribute to broader domestic ownership of accountability mechanisms and norm internalization, it is another entirely to actively try to achieve that on a daily basis through what is essentially a criminal court. I recently compared the ICC to the frog who wanted to be an ox in Oesop’s fable, which eventually blew up because of its exaggerated ambition. I’m wondering if an equally apt comparison is that of the mixed up chameleon in the children’s book by that name, where a chameleon, aspiring to be more that what he is, successively acquires the attribute of whatever animal he thinks is better than him (the trunk of an elephant, the neck of a giraffe, the tail of a fox, the shell of a turtle…) until he ends up looking like this:


Ultimately, the chameleon looks like nothing recognisable, a cumbersome puzzle of a being incapable of doing anything, who soon realises that he is hungry and that he cannot, in that state, do the simplest of tasks for a chameleon, catch a fly…

Isn’t the ICC, which is trying to be a truth commission for broken societies, a cathartic tool for promoting reconciliation, a civil court for victims, a human rights judge of domestic due process, a reparations fund for affected communities, a monitoring body for national capacity building, an advisory service for domestic prosecutions and more generally the self-appointed spokesperson for putting an end to impunity in the word, at risk of ending up in the same situation as the poor chameleon of the story? Let’s hope not…

This, I think, leads to a more general discussion on the role and function assigned to the Court, notably in the Rome Statute, and how it relates to what it is actually expected to do. I have believed for many years (and am of course not the only one), that that there is a disconnect between people’s expectations and what the ICC can achieve in affected communities, or in relation to general goals of peace and security. One can even challenge the idea that this specifically tailored criminal court can achieve a meaningful sense of justice.

With this in mind, I am continuously struck how so many people so easily blame the Court (and international justice in general) for not succeeding in a number of areas. Or how our expectations taint our analysis of the Court. In that respect, I had a first had experience of this last week when being kindly interviewed by a number of journalists on the Kenyatta case. Faced with dramatic questions generally revolving around the theme of whether this spelt the end of the ICC, and related issues on the weakness and one-sidedness of the Court, I came out with rather anti-climatic responses (which probably explains why so little was actually used in print): when did we ever expect the Court to not have difficulties in prosecuting sitting heads of states? who believed that it is easy to investigate crimes during ongoing conflict? of course it is easier to prosecute rebels that the government in power. Yes, the Rome Statute is a treaty, which means that powerful States who do not join the Court are mostly beyond its reach. In essence, all of this is a daily reality of the Court, so should therefore not lead to cataclysmic evaluations of its performance. Yet, this is what happens all the time.

This was also true at last week’s conference and I ultimately blame some of those who both defend and criticize the court for creating this false hope among the affected communities. Some examples spring to mind.

One speaker concluded his presentation by inviting lawyers to appreciate the complexities of post-conflict societies and not rigidly apply the ICC’s repressive framework. I think this is a misguided criticism. Those who work at the ICC are tasked with applying the Rome Statute, that is their job. This is the Court that States negotiated and joined, and it is too easy now to blame those who implement it today for not achieving goals that were never adequately catered for in the Statute, as noted by one of the participants from the OTP, who intervened at the end and concluded that the  ICC was a trap that geared them to fail (letting aside at this point the fact that these goals are arguably not compatible with the nature of a criminal court).


[Update: Sara Kendall and Christian de Vos, co-organisers of the conference, have kindly taken the time to respond to this first point. I invite readers to go to the comments section, especially for some contextualization of the above comment, within a broader discussion that I did not give. As a result, I apologize if using this example out of context has led to an unfair mischaracterization of the author’s views. While this particular author did not aim at blaming the lawyers in the caricatural way I portray it, it should not take away from my basic finding that there is a tendency among a number of commentators to do that. And while there is always a margin of policy and discretion in the practice of law (as I pointed out myself in relation to complementarity, ultimately legal framework do have limits and there comes the point where the blame should rest on those who create the legal institutions rather than those who implement them.]

Another speaker suggested that we should “keep things simple” in order to enhance the pedagogic function of the Court. Again, I think that this is misguided. Law is complicated generally (if not why have some of use spent so many years studying it to achieve the knowledge we now have about it?) and international criminal proceedings are particularly complex in their procedural technicalities. There is only so much “dumbing down” of the system that can be done for a wider audience without this (noble) attempt at explaining becoming a big lie. In fact, one can wonder if the inherent complexities of international criminal law are not what make it a possibly inadequate, or at the very least a limited tool for dealing with collective violence and the societal expectations that are associated with their aftermath.

One of the most egregious example at the conference was one speaker who, when asked what he would tell the Kenyan victims after the dropping of the charges against Kenyatta, responded that he would tell them that Kenyatta was not “vindicated”, that he did not “clear his name in Court as he had wanted to” and that, if the case failed, it is not through lack of evidence, but through obstruction, notably by Kenya. This is a totally misleading way of presenting what happened. Kenyatta is presumed innocent. He does not have to “clear his name in Court”. He enters the proceedings innocent and remains that way until the Prosecutor has proven his guilt beyond a reasonable doubt, which did not happen. Moreover, the Prosecutor herself has said that she does not have enough evidence and the Chambers have explicitly blamed the OTP for a number of failures in the investigation. If this is the way the case is presented to the victims by what appears to be a knowledgeable observer of the Court, how can we be surprised that people have false expectations about the institution?

Of course, not all the blame rests on outsiders to the Court. State parties to the ICC create equally false expectations when they, for example, try to use the institution as a conflict management mechanism, as in the Syria example. Equally, the OTP, while being but one organ of the Court, is often seen as symbolizing the fight against impunity, and the Prosecutor becomes the most public figure of the institution. This carries with it a certain responsibility to be cautious in not using too emphatic a discourse, which often happens. In relation to this, for example, I’m not sure that Prosecutor Bensouda being such a vocal spokesperson of the campaign to end sexual violence in conflict is not sending the wrong message that all victims of such crimes can expect the ICC to help them, which is clearly not the case.

At the end of the day, we have to accept that maybe, just maybe, we created an institution that is inadequate to achieve the (unreasonable) goals that underscored its coming into existence. From there, we have two options. The first one, possibly more pragmatic, is to try and tweak with what we have to make it more efficient in realizing these goals. This was the ambition of last week’s conference.

The second one, more radical, is to say that the ICC is a failed attempt and that we should start thinking of something else. This does not necessarily mean that we get rid of the Court, but at least that we stop giving it (and international criminal justice in general) such a hegemonous and ultimately unhelpful position in all discussions relating to post conflict situations. This would avoid the current frustration with the Court and put the responsibility for its alleged failures squarely back where it belongs: on the States, activists and NGOs that wanted it and designed it as it is.

In relation to that, at last week’s conference, one speaker took the floor to defend the ICC by saying that people criticize it too much and that, by doing that, they are playing into the hands of the war criminals. Ultimately, he cautioned against any criticism that might fragilize the Court. These are strong comments, but I’m not sure how helpful they are. Indeed, if, as an observer/academic, we become blinded by our emotional attachement to our object of study, this taints the credibility of everything we say. Intellectual honesty dictates that we accept to conclude that an institution has failed, if that is the case and what is shown by our research, however much we have invested in it.

Has that time come for the ICC, where the early passion has faded away, and a rational stocktaking leads to the inevitable conclusion of a divorce? I do not know. But the option needs to be on the table if any analysis of the Court is to be credible. Of course, International Criminal Justice has a lot of children (institutions, activists or individuals invested in the relationship…) which always makes things more difficult in a divorce. But the answer cannot be that we have to stay together “for the kids”, which is probably, on the long term, a recipe for disaster for everyone.

BREAKING NEWS: Charges Dropped by the ICC Prosecutor in the Kenyatta Case

Earlier this week, the Trial Chamber in the Kenyatta case at that ICC told the Prosecutor to either bring new evidence or drop the charges. I predicted without to much doubt that the charges would indeed be dropped. Just this morning, the OTP promptly confirmed this in a press release and in a notice of withdrawal filed with the Trial Chamber.

As I said, this was the only possible outcome, given that the Prosecutor herself had acknowledged that, as things stood, there was not enough evidence to prove the case beyond a reasonable doubt. I will not repeat here what I think are the consequences of this turn of events for Kenyatta, the Court and the OTP. I just want to add three extra points. Continue reading

An ICC Trial Chamber brings the Kenyatta case closer to an end

[Cross-posted on Invisible College]

Today, a Trial Chamber at the International Criminal Court (ICC) issued two decisions in the case against President Kenyatta of Kenya. Together, these decisions bring the case yet closer to a close, even before the trial even started. As you might know, a few weeks ago, the Trial Chamber held two status conferences at which was discussed the question of Kenya’s alleged lack of cooperation with the Prosecutor’s investigation, the OTP request for another adjournment of the trial and the Defense’s corresponding request for a termination of the proceedings.

Today’s decisions when read together can only be read as an unmitigated disaster for the Office of the Prosecutor (OTP). In the cooperation decision, the Trial Chamber, while recognizing some elements of bad faith and finding overall non-compliance (§78) on the part of Kenya, ultimately considers that it would be inappropriate to make a referral of non-compliance to the ASP because ultimately “while cooperation by State Parties is crucial for the functioning of the Court, the primary responsibility for investigation lies with the Prosecution” (§85). In light of this, the Chamber considered that the OTP did not do all it could to follow through on its own request for cooperation. Continue reading

The Lubanga Appeals Judgment: another nail in the coffin of the Confirmation of Charges Procedure?

On the 1 December 2014, The Appeals Chamber of the International Criminal Court (ICC) issued its Judgments on the Lubanga Trial Judgment and Sentencing Judgment. These judgments bring to a final close the first trial of the Court, nearly 9 years after Lubanga was transferred to the Court and nearly 3 years after the Trial Judgment. The Appeals Chamber confirmed everything, both the judgment and the sentence, with a partially dissenting opinion from Judge Song and a very strong dissent from Judge Usacka.

This trial has been a regular feature of this blog (see more particularly discussion of the Trial Judgment here, here and here and of the sentencing Judgment here and here). If you go through past commentaries of the trial, you will note that a number of issues have created controversy over the years: Prosecutorial miscond… sorry, negligence in relation to the use of intermediaries, the relevancy of evidence of sexual violence or whether the definition of co-perpetration includes a “control over the crime” criteria as imported out of thin air (or rather German criminal law doctrine) by a number of Chambers at the Court. More generally, this was a first opportunity to test the “Ocampo Legacy” at the appeals level. So, how did the Appeals Chamber do? Continue reading