Thursday, June 28, 2012

Lubanga Judgment: New Case Law on Child Soldiers

Thomas Lubanga at the ICC    Photo Courtesy of Evert Jan Daniels
This year the International Criminal Court celebrates its 10th anniversary since opening its doors in Hague in 2002. This year is not only the anniversary of the Court but also the first time that the Court has handed down a conviction to date. March of this year saw the founder and leader of the rebel group Union des Patriotes Congolaise (UPC), Thomas Lubanga Dyilo found guilty on charges of conscription and enlistment of children under the age of 15 by using them to participate actively in the ongoing armed conflict in Ituri. This is an important Judgment for the International Criminal Court as it is not only authoritative at the international level, but it is the first judgment which solely relates to the use of child soldiers.

The crime of recruitment and use of children under the age 15 years as a war crime has so far not been relevant under international criminal law. The judgment is relevant since according to the Trial Chamber it extends to any armed group within the context of a non-international armed conflict and within the ambit of international humanitarian law.

Kai Ambos has already written a paper dealing with an analysis of the legal issues emanating from the trial. His paper entitled “The first judgment of the International Criminal Court (Prosecutor v Lubanga): A Comprehensive Analysis of the Legal Issues” deals more in depth with the legal issues of the judgment.  He pays special attention to the definitional elements of the crime as handed down by the Chamber and affirms the Chambers findings that the verbs ‘conscripting’, ‘enlisting’ and ‘using’ under Art. 8(2) (e) (vii) reflect separate offences and thus should stand on their own.  

I found the topic dealing with the problem of consent which he also addresses to be particularly interesting. Ambos holds that while the definition of ‘enlistment’ implies voluntary recruitment as opposed to the term ‘conscripting’ which implies compulsory recruitment as decided by the Chamber; the autonomous decision of a child who voluntarily decides to join an armed force may negate the actus reus of the offence in question. So in other words, the objective element of the crime coupled with the intent of the accused and which in turn produces criminal liability for the accused is brought into question when a child voluntarily joins an armed group. What the Chamber has done in Lubanga to overcome this problem is to treat both offences as equal. In other words, the Chamber has held that the offences of ‘conscripting’ and ‘enlisting’ are committed at the moment a child under the age of 15 is enrolled or joins an armed force or group, with or without compulsion” (Para. 618 Lubanga Judgment).

What Ambos argues is that by doing so the Chamber has overlooked the autonomy of the potential victim which may in fact violate the protection of his/her personal autonomy and free will. What this leads to is that if a child agrees to voluntarily join an armed group, a definitional element of the actus reus is absent and the offence in question cannot be fulfilled because the prosecution cannot show or prove this element of the relevant offence in question. Such voluntary consent could further provide a valid defence to enlistment.

Related to the issue of voluntariness of consent is still the concern that culture also has a role to play and should have also been considered by the Chamber during the evaluation of evidence. In my opinion, and as I have addressed before in a previous post dealing with child soldiers in the Sierra Leonean context, the questions that need to be asked are: Was the offence a crime under customary international law of the DRC? Is it perceived as a crime in the DRC and has it been criminalized as such? Has this practice formed part of the culture of the country and if so could the accused’s guilt be mitigated?

As in the case of Sierra Leone, the protection of children under Congolese national law has been both scarce and ineffective. Despite the fact that the DRC ratified the Optional Protocol to the Convention of the Rights of the Child on the involvement of children in armed conflict in 2001 and set the voluntary age for recruitment at 18, the practice of child recruitment continues to date even though under its 2006 Constitution the DRC makes clear that any person under the age of 18 is a child. The Constitution lacks in that it does not specifically prohibit the recruitment and use of children. Furthermore, although DRC is a member to the Rome Statute, no implementing legislation has been enacted to bring its national laws in line with the Rome Statute. It was only in 2009 that a Child Protection Code was enacted prohibiting the recruitment and use of children, by armed forces, groups or the police. But still, no definition has been provided for the terms ‘recruitment’ and ‘use’ under the Code, making it difficult to understand just exactly these terms should mean within the Congolese context. For information and a better understanding of DRC national laws and ratification to international treaties dealing with the rights of the child read the OPAC Shadow Report of 2011.

Photo courtesy of Unicef

In other words how to prosecute those responsible for a crime if the crime is not perceived as a crime by the offender or victim? By perceived I mean that both persons should feel morally convicted that something illegal is taking place and should know this. Even if it can be shown that the offender knew this doesn’t imply a duty on his part to refrain from a practice which might not be perceived as harmful by him in the first place. As I mentioned in one of my older blog posts there is no universal qualification for the concept of a child and a distinction should always be drawn between the ‘child in law’ and ‘child in culture.’ And even though taking these factors into account will not change the crime in question as set out under the Rome Statute, what it can do is provide for mitigation during punishment and a better sentence for offenders who can prove that their cultural beliefs or practices were at odds with the international understanding of the crime in question.

Posted by Ingrid Roestenburg-Morgan

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