Category Archives: war crimes

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

Guest Post: The Use of Chemical Weapons is not a Crime against Humanity

By Catherine Harwood, Grotius Centre for International Legal Studies

The use of chemical weapons in Syria in August 2013 has generated widespread international outrage. International actors have condemned the use of chemical weapons and have employed the language of international criminal law to convey the severity of the violation. The UN Secretary-General stated that “[a]ny use of chemical weapons anywhere, by anybody, under any circumstances, would violate international law. Such a crime against humanity should result in serious consequences for the perpetrator.” Similar sentiments were expressedby the Bureau of the Parliamentary Assembly of the Council of Europe. US President Obama also labelledchemical weapons “a crime against humanity, and a violation of the laws of war”.  The use of chemical weapons is prohibited under both conventionaland customaryinternational law and may be prosecuted as a war crime. But does the prohibition extend to liability under international criminal law as a crime against humanity?
Many voices have called on the Security Council to refer Syria to the ICC.  Although practical prospects of referral remain doubtful, the ICC is in principle an appropriate institution to conduct international prosecutions regarding the situation in Syria. If a prosecution is initiated, many may expect to see the use of chemical weapons reflected in the charge sheet.  In light of this, the question whether the use of chemical weapons could amount to a crime against humanity is explored by reference to the Rome Statute. This inquiry explores the statements by the UN Secretary-General and others that any and all uses of chemical weapons amount to crimes against humanity.