The day the trial of Thomas Lubanga resumed at the International Criminal Court (ICC) on 7 January 2010 was marked by the testimony of Radhika Coomaraswamy, the UN secretary general’s special representative for children and armed conflict. During her testimony, Coomaraswamy reminded ICC judges that with regard to defining “child soldiers” it is important to not make a distinction between children who participated actively in hostilities and children who played an indirect role. As Coomaraswamy underscored: “Girls play multiple roles in conflict, including combat, portering, scouting but also [there is] sexual slavery and [they are] bush wives….we need to draw attention to the roles girls play and the need to protect them in every context.”
Child soldiering, one of the central elements in the Court’s first-ever trial is a very complex concept that reveals a gap between the practice of child soldering and the rules and regulations of the ICC and international justice norms more broadly.
The concept of “child soldiers” is not new; it dates back more than a century.
According to the principles of the Convention on the Rights of the Child, the definition of “child soldier” -a definition widely recognized by experts in the field-stipulates that “any person under 18 years of age who is part of any kind of regular or irregular armed force or armed group in any capacity, including but not limited to cooks, porters, messengers and anyone accompanying such groups, other than family members. The definition includes girls recruited for sexual purposes and for forced marriage. It does not, therefore, only refer to a child who is carrying or has carried arms.”
In addition, the concept of children associated with armed forces and groups aims to include not only child soldiers but all children directly or indirectly implicated in the activities of armed forces and armed groups. Yet this concept is not a part of the Rome Statute. In fact, although the use of child soldiers is recognized as a war crime under Article 8 of the Rome Statute, its definition does not indicate other categories of child soldiers that do not “actively participate in hostilities.”
It is true that children serve armed forces and armed groups in different ways: as foot soldiers, body guards, informants, witch-healers, cooks and so on. Some are trained to handle more than one task at a time (e.g. combatant and cook) while for a more limited number of children, their role is restricted to one of function (e.g. sexual slave). The recruitment of child soldiers thus takes on many forms, one of which is the sexual exploitation of girls.
This is why, in practice, the distinction between active participation and non-active participation in hostilities is exceptional and very rare. It is hard to find a child in an armed force or armed group that could not become a soldier.
Given the complexity of defining what we mean by “child soldiers,” any discussion ought to take place within the realm of practical not theoretical considerations.
Bukeni T. Waruzi is an expert on child soldiers with WITNESS where he is Program Coordinator for Africa and the Middle East.
Translation is informal and provided by CICC Secretariat.
It is important to underscore that the contradictory and imprecise nature of certain Rome Statue provisions make their meaning difficult to grasp. With regard to children participating in hostilities, the term “child soldier” calls up a myriad of different interpretations and understandings due to insufficiently detailed explanations.
First, participation in the hostilities must be “active” meaning a child solider armed with a weapon has effectively taken part in combat and is physically at the scene of the hostilities according to Article 8 (2) (b) (xxvi). If we stop here, with this explanation, we exclude the possibility of child soldiers serving as cooks, “sexual slaves” to rebel leaders, transporters of ammunition.
Second, the Statute of Rome employs the term ‘active’ participation which could also signify that the child that has not taken part in hostilities has nonetheless participated in hostilities by bringing ammunitions to combatants, or food, or drinks, or in the case of girls, by providing “moral comfort” to rebel leaders. These children would thus be considered as having contributed to the war effort; to perpetuation of combat; to advancing troops; to contributing to victory or defeat. Can these actions be regarded as a non-active participation in the hostilities? How can we qualify this participation from a legal standpoint? Which is the status of these children? What type of responsibility is assigned to the military leaders?
Finally, it is important to specify that the terms active participation and non-active participation in hostilities share a commonality: the idea of participation in the hostilities and the notion that the author of the act is held criminally responsible. It was therefore wrong to use the adjective “active” in the Rome Statute.
Alexis Mantsanga, Legal advisor and international justice expert based in the Democratic Republic of Congo
Translation is informal and provided by the CICC Secretariat.
It is noteworthy that the Rome Statute separates the act of enlisting/conscripting children and that of using children to participate actively in hostilities. This could resolve the issue without having to enter into the definition of “child soldier”, which is nowhere to be found neither in the Rome Statute nor in the Convention on the Rights of the Child and optional protocol.
It is a crime to recruit children, independent of the role they will have in the armed group/forces. This means that although some children may be said to have “actively” participated in hostilities and others not, the fact of having recruited them in the first place already constitutes a crime over which the ICC has jurisdiction.
The term ‘child soldier’ is a commonly used term for children who are recruited and used in armed conflict, but it may be dangerous to attribute a legal meaning to this term.
If this is done, we must also consider the field of International Humanitarian Law (IHL), and look at what being labeled a soldier could imply for the child. For example, a soldier is a military target and can legitimately be targeted during armed conflict.
It seems that the term ‘child soldier’ has been deliberately expanded, in the belief that this would include more children under the umbrella of protection that was set up for child soldiers. However, from an IHL perspective, there are also risks with such an expansion.
The problem could be avoided if focus was put on ‘recruitment’ more than on ‘participation’.
Moreover, the Rome Statute opens for the possibility to hold criminals responsible for several crimes committed against children. Aside from enlistment/conscription or use in hostilities, crimes such as sexual slavery, rape, cruel and inhuman treatment must be taken into consideration. The problem in the Lubanga trial is that only when the trial had already begun did the prosecution’s side try to add charges of sexual slavery and cruel and inhuman treatment to the case. This should have been done from the start, and hopefully in future cases of the ICC we will see the Rome Statute applied to its full scope.
Researcher in law