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.

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