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Paper to the Legislators

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The use of children in warfare is disturbing. Children are often involved in conflicts worldwide as combatants, messengers, porters, cooks, and otherwise. Historically, children under the age of fifteen have been recruited in Sierra Leone and have been used to guard the mines from which “blood diamonds” were extracted to finance the war, and some cases being used as shields to commit atrocities. The use of the children constitutes active participation in the hostilities – because guarding the mines from which blood diamonds were extracted to fund the war is a qualified military activity and such activity exposed them to danger. Thus, the use of the children to “actively participate” is not limited to the battlefield.

The United Nations (UN) has attempted to prevent the use of children in hostilities. However, a robust international law response against this practice is still needed. One such response was the International Criminal Court (ICC)’s first ever Appeals Chamber decision to convict Mr. Thomas Lubanga of two war crimes for enlisting and conscripting children under the age of fifteen years and using children to participate actively in hostilities. Like, the conflict analyzed in the Lubanga’s case, the Sierra Leonean conflict in which they used the children was an armed conflict not of an international character. The Lubanga’s decision discussed the phrase ‘participate actively in hostilities’ in Article 8 (2) (e) (vii) of the Rome Statute (Statute). Thus, those who used the children in Sierra Leone are liable for using children to participate actively in hostilities.

Despite the effort made, the Lubanga’s decision raised concerns. There is a tension between the broad approach taken by the ICC in Lubanga and the general understanding of ‘direct’ participation in hostilities at international humanitarian law (IHL), which is quite narrow. ‘Direct’ participation in hostilities at IHL has traditionally related to the protection of civilians from being legitimately targeted during hostilities; that is, the parties may not target civilians who are not directly participating in hostilities. Moreover, both ‘active’ and ‘direct’ are viewed synonymously at IHL. The Statute’s aim to put an end to impunity for the perpetrators of these crimes and thus that to contribute to the prevention of such crimes would not be realized. A clear law can be more efficiently used to prosecute and deter criminal conduct.

Traditionally, ‘active’ and ‘direct’ were interpreted synonymously at IHL according to the principle of distinction. Commentators recognize that persons will not lose their status as protected civilians if they indirectly participate in hostilities. However, the scope of activities constituting direct participation in Article 77(2) of Additional Protocol I is unclear, as the provision aims to prevent children from participating in hostilities both directly and indirectly. Article 38(2) of the CRC, which also uses ‘direct’ to qualify participation in hostilities, has a similar purpose, despite its apparent allowance for children to indirectly participate in hostilities. Therefore, there is a tension between a broad interpretation of the phrase and the more traditional, narrow interpretation. Article 4(3)(c) of AP II, moreover, comprehensively prohibits all use of children under fifteen years of age in non-international armed conflict.

To conclude, in armed conflict of international character, the enlistment or conscription of children in the national army is a crime. While in armed conflict not of international character, enlistment or conscription of children in armed forces is a crime. These distinctions came into effect after the inception of the Rome Statute. However, the use of children in hostilities in both a national army and armed group may also lead to rendering criminal liability to both government actors and actors on the side of a military group. Those who use the children in Sierra Leone to guard the mines from which “blood diamonds” were extracted are probably subject to prosecution for using them to participate actively in the hostilities in Sierra Leone consistent with the Lubanga’s decision

By Kunkunyon Welh Teh

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