Sexual Violence Against Children on the Battlefield as a Crime of Using Child Soldiers: Square Pegs in Round Holes and Missed Opportunities in Lubanga

Abstract

In Lubanga, the International Criminal Court rendered its first judgment convicting the accused for the war crimes of conscripting, enlisting and using children under the age of fifteen to ‘participate actively in hostilities’. These original charges were also relied on by the Prosecution to pursue acts of sexual violence against young girls, mostly in the service of armed forces, but also civilians—a decision made belatedly in the proceedings. The novelty of the argument that the crime of using child soldiers also encompassed acts of sexual violence against child soldiers was dismissed on a technicality by the majority and only a minority of Trial Chamber I engaged with, and found favorably, in the Prosecution’s favor. The analysis in this chapter addresses some of the concerns with the premises underlying the reasoning in the minority decision. Most problematically, its over reliance on international human rights law and ‘soft law’ norms to expand the concept of using children to ‘participate actively in hostilities’, so as to include acts of rape, forced marriage and sexual slavery, may have unintended effects by decreasing the protection of those victims in international humanitarian law. This does not suggest that impunity for sexual violence offenses should be tolerated. Other specific war crimes and crimes against humanity provisions within the Rome Statute are more suitable to deal with offenses of sexual violence against child soldiers and could have been charged cumulatively along with the offense of recruiting and using child soldiers. The Trial Chamber was also unassisted by the confusion caused by Prosecution’s failure to appreciate the distinction between the separate crimes of conscription, enlistment and use of child soldiers. As a result, other possible bases of liability that may have had greater merit were overlooked, including sexual violence solely as a crime of conscription, or the use of child soldiers themselves to commit crimes of sexual violence.