Category Archives: icl

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. Continue reading