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.

• Prohibition of participation of children in hostilities in the Rome Statute

The Preparatory Committee’s Draft Statute proposed three possibilities for the prohibition of child soldiers, which loosely corresponded to different participation thresholds in IHL:

Option 1: forcing children to take direct part in hostilities (akin to AP I);

Option 2: using children to participate actively in hostilities (no IHL equivalent); and

Option 3: allowing children to take part in hostilities (akin to AP II).

The Committee clarified that Option 2 was broader than ‘direct’ participation (fn. 12):

The 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. However, use of children in a direct support function such as acting as bearers to take supplies to the front line, or activities at the front line itself, would be included within the terminology.

Rome Conference delegates favoured Option 2. Confusingly, however, the English version of the Statute also reflects IHL’s synonymous treatment of ‘active’ and ‘direct’ with regard to general civilian protection, in arts. 8(2)(c), 8(2)(b)(i) and 8(2)(e)(i). As in IHL, the French version of the Statute consistently identifies the general limit to civilian protection with the phrase ‘de personnes qui ne participent pas directement aux hostilités’ (persons who do not directly participate in hostilities). The distinct threshold of ‘participer activement à des hostilities’ (active participation) is only used in the prohibition of the participation of children in hostilities.

Thus, a crucial question arises: should the Rome Statute’s prohibition of ‘active’ participation of children be considered as synonymous with ‘direct’ participation, or should it proscribe a broader range of activities? The ICC has dealt with this question in several cases.

• ICC Jurisprudence

Prosecutor v. Thomas Lubanga

In its judgment convicting Mr. Lubanga of using child soldiers, the Majority of Trial Chamber I found that ‘active’ participation in art. 8(2)(e)(vii) was broader than ‘direct’ participation as it was “intended to import a wide interpretation to the activities and roles that are covered by the offence” [§ 627]. The Chamber continued:

Those who participate actively in hostilities include […] 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. All of these activities, which cover either direct or indirect participation, have an underlying common feature: the child concerned is, at the very least, a potential target. The decisive factor, therefore, 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.

The Majority considered that children participated actively when serving as bodyguards and military guards, as well as when doing domestic work, when those duties exposed the child to danger by becoming a potential target [§ 882]. Thus, there is no need for a belligerent nexus. Mr. Lubanga is appealing his conviction, including on the basis that ‘active’ participation should be limited to ‘direct’ participation, using the test in the ICRC Interpretive Guidance [§§ 256-259].

The Lubanga judgment has been criticized by commentators who consider that it reduces the scope of civilian protection. Urban notes because ‘active’ participation is also used in the Statute to describe general civilian protection, “[t]he 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).” However, the reference to children being potential targets does not imply that they legally lose protection through their indirect participation. Rather, because such activities could in fact place children in harm’s way, regard should be had to the level of risk involved. Implicitly, the Majority seemed to accept different meanings of ‘active’ participation in the Rome Statute, so that art. 8(c) is synonymous with ‘direct’ participation, whereas arts. 8(2)(b)(xxvi) and 8(2)(e)(vii) include ‘indirect’ forms of participation.

Prosecutor v. Germain Katanga

Trial Chamber II’s judgment in Katanga took the same approach to ‘active participation’ in  art. 8(2)(e)(vii) as Lubanga. The Chamber ruled that participation could be direct or indirect, and that the critical question was whether the activity made the child a potential target, in the sense of exposure to real danger [§§ 1043-1045]. The Chamber found that using children as porters on front lines could amount to ‘active’ participation. This judgment is final, following the withdrawal of appeals by the  Defence and Prosecution.

Prosecutor v. Bosco Ntaganda

The charges faced by Bosco Ntaganda include rape and sexual slavery of child soldiers, as well as use of children in hostilities. The Defence submitted that rape and sexual slavery of child soldiers was not prohibited, as IHL does not protect persons participating in hostilities from crimes committed by those on the same side of the conflict [§§ 251-263]. In confirming the charges, the Chamber reasoned that because rape and sexual enslavement involve force or coercion, these crimes “logically preclude active participation in hostilities at the same time” [§ 79]. That outcome has been welcomed by commentators as a matter of policy.

Pre-Trial Chamber II observed the general limit to civilian protection of ‘active’ participation in Common Article 3 and ‘direct’ participation in the Additional Protocols [§ 76]. The central question was whether children were “taking direct/active part in hostilities at the time they were victims of acts of rape and/or sexual slavery” [§ 77]. The Chamber concluded that children lose civilian protection “only during their direct/active participation in hostilities” [§ 79]. The Chamber’s use of the term ‘direct/active’ recalls the various terms in IHL denoting the limits of civilian protection. But the term ‘active’ also evokes the language of art. 8(2)(e)(vii). While the Chamber cited the Lubanga and Katanga trial judgments, the meaning of ‘active’ participation of children under article 8(2)(e)(vii) could have been more clearly enunciated.

• In Defence of a Distinct Threshold of ‘Active Participation’ of Children in Hostilities

In light of the inconsistent terminology used in IHL and reflected in the Rome Statute, the distinct meaning of ‘active’ participation in arts. 8(2)(b)(xxvi) and 8(2)(e)(vii) should be clearly enunciated in order to distinguish the general threshold of civilian protection from the prohibition of the use of child soldiers. The distinction between ‘active’ participation in 8(2)(b)(xxvi) and 8(2)(e)(vii) on one hand, and ‘active’ participation in art. 8(2)(c) on the other, is admittedly undesirable, as the same word should be interpreted consistently in the same instrument. However, this problem only plagues the English version of the Statute, as the French version plainly distinguishes ‘active’ participation of children from the general civilian protection limit of ‘direct’ participation. The term ‘participer activement’ should be respected as a distinct concept.

Failure to recognise this distinction could produce unsatisfactory outcomes. If a unitary standard is adopted and a wider range of activities falls within ‘active/direct’ participation, children could lose civilian protection more easily. However, this outcome is not likely, considering the narrow interpretation of ‘direct participation in hostilities’ articulated by the ICRC. A more likely outcome is that participation in combat-related activities falling short of ‘direct’ participation would fall outside the prohibition on child soldiers. This ‘rule of thumb’ might be easier to apply on the battlefield, so that commanders link the prohibition on child soldiers to the sorts of activities that result in loss of civilian protection. However, the same conceptual threshold should not automatically apply to rules with different underlying rationales.

Some may oppose a wider interpretation on the basis that in the ‘fog of war’ it may be difficult to tell if a child present at an army base or in a combat zone is actively participating in hostilities. However, attacking forces do not need to make this determination; that is the responsibility of the armed group that allows children’s involvement in hostilities. The key question for attacking forces is whether the child is directly participating, as this determines whether he or she is entitled to civilian protection. This inquiry must be made regardless of the scope of the prohibition on child soldiers.

Moreover, a wider prohibition on the use of children in hostilities will not displace the important balance struck between humanity and military necessity in IHL, as the principle of proportionality tolerates some collateral damage. Harm caused to children who are present in a combat zone but who are not directly participating will be lawful so long as the attack is proportionate and feasible precautions have been taken. A wider prohibition does however generate criminal responsibility for commanders who allow children to indirectly participate in risky situations.

Finally, the principle of strict construction enshrined in art. 22 of the Rome Statute is not contravened in light of the distinct terms used the French version of the Statute, indications of the intended breadth of active participation of children signaled through the drafting process, and the broad prohibitions of participation of children in hostilities recognised in AP II and customary international law. In short, ‘active’ participation by children should remain distinct from the delimitation of general civilian protection, 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.