Skip to main content
SpringerLink
Log in

Between Consolidation and Innovation: The International Criminal Court’s Trial Chamber Judgment in the Lubanga Case

  • Chapter
  • First Online:
Book cover Yearbook of International Humanitarian Law Volume 15, 2012

Part of the book series: Yearbook of International Humanitarian Law ((YIHL,volume 15))

Abstract

The Lubanga judgment, delivered by Trial Chamber I of the International Criminal Court on 14 March 2012, provides an in-depth analysis of the notion of armed conflict, and of the war crimes of conscripting, enlisting and using children under 15 to participate actively in hostilities, per the Rome Statute. To a certain extent, this analysis reproduces and confirms existing practice developed by other international bodies, most notably the International Criminal Tribunal for the former Yugoslavia (ICTY). In particular, the Trial Chamber endorses legal arguments related to such issues as the definition of a non-international armed conflict, the criteria for evaluating when such a conflict becomes international in nature owing to foreign intervention, and the coexistence of different forms of armed conflicts within a single territory. The Lubanga judgment thus contributes significantly to the consolidation of such practice, as it provides the first opportunity for the International Criminal Court to position itself with regard to these different questions. However, on certain other issues, the judgment proposes new legal guidance, clarifying key concepts used in the Rome Statute. The most innovative of these developments relate to the protection of children. The Trial Chamber considers that the notions of conscription and enlistment under Article 8(2)(e)(vii) of the Rome Statute must be interpreted as protecting children under 15 against any form of recruitment, whether voluntary or compulsory, regardless of the purpose of their incorporation into armed forces or groups. It also considers that the criminalization, under the same Article, of the use of children under 15 to participate actively in hostilities is not limited to functions carried out on the front line, but also includes other activities linked to combat. The Trial Chamber thus seeks to ensure that relevant legal concepts are comprehensive enough to ensure maximum protection to the boys and girls potentially covered by this provision. Nevertheless, it can be argued that, to some degree, this reasoning lacks persuasive authority. It fails to take into consideration that the notion of participation in hostilities (both active and direct) is used in other provisions of the Rome Statute and elsewhere in treaties of international humanitarian law.

Sylvain Vité teaches Human Rights Law at Bilkent University in Ankara, Turkey. The author would like to thank Yvette Issar for her support in editing this article.

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

Log in via an institution
Chapter
USD 29.95
Price excludes VAT (USA)
  • Available as PDF
  • Read on any device
  • Instant download
  • Own it forever
eBook
USD 84.99
Price excludes VAT (USA)
  • Available as EPUB and PDF
  • Read on any device
  • Instant download
  • Own it forever
Hardcover Book
USD 109.99
Price excludes VAT (USA)
  • Durable hardcover edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info

Tax calculation will be finalised at checkout

Purchases are for personal use only

Institutional subscriptions

Notes

  1. 1.

    International Criminal Court, Trial Chamber I, Situation in the Democratic Republic of the Congo in the case of The Prosecutor v. Thomas Lubanga Dyilo, 14 March 2012, ICC-01/04-01/06-2842.

  2. 2.

    See, e.g., Committee on the Rights of the Child, Press statement—Committee on the Rights of the Child welcomes the ICC ruling in the Lubanga Case, Geneva, 15 March 2012; Office of the Special Representative of the Secretary-General for Children and Armed Conflict, SRSG Coomaraswamy welcomes the International Criminal Court’s first verdict—the conviction of Thomas Lubanga for child recruitment, 14 March 2012.

  3. 3.

    For a comprehensive review of the legal issues addressed in the Lubanga judgment, see Ambos 2012, pp. 115–153.

  4. 4.

    ICTY, Prosecutor v. Tadić, Case no. IT-94-1-AR72, Appeals Chamber, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para 70.

  5. 5.

    See, e.g., Commission of Inquiry on Lebanon, Report pursuant to Human Rights Council resolution S-2/1, A/HRC/3/2, 23 November 2006, para 51; ICRC 2008.

  6. 6.

    See., e.g., Dupuy and Leonetti 1979, p. 258; Reisman and Silk 1988, p. 465. More recently, see also Stewart 2003, pp. 313–349.

  7. 7.

    GCIII, Article 118(1).

  8. 8.

    ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, ICJ Reports 1986, para 219. See Vité 2009, p. 86.

  9. 9.

    ICTY, Prosecutor v. Tadić, IT-94-1-A, Appeals Judgment, 15 July 1999, para 84. A number of scholars also support this approach (see Schindler 1982, pp. 255–264).

  10. 10.

    For an analysis of the notion of non-international armed conflict under both provisions, see Dörmann Dörmann 2003, pp. 384–389 and 441–442.

  11. 11.

    For a reminder of this debate, see Schabas 2010, pp. 205–206; Vité 2009, pp. 80–83; Sivakumaran 2009, pp. 371–380.

  12. 12.

    Protocol Additional to the Geneva Conventions of 12 August 1949a, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977.

  13. 13.

    The wording of para (2)(f) is the outcome a compromise between delegations in favor of introducing a list of war crimes applicable to non-international armed conflicts and those against the introduction of such a list. An initial proposal in the direction of such a compromise was submitted by the ‘Bureau of the Committee of the Whole’ and consisted of limiting the field of application of the crimes mentioned in para (2)(e) by taking up the restrictive criteria elaborated in Article 1(2) of APII (A/CONF.183/C.1/L.59). As an agreement could not be reached on that proposal, Sierra Leone suggested the text of para (2)(f) that was ultimately retained, with a reference to the notion of “protracted armed conflict”. The aim was to appease the delegations that were reluctant to introduce war crimes into the law of non-international armed conflict, while avoiding a threshold of application as high as that in APII. Other delegations were indeed opposed to inserting such a threshold in the Rome Statute (A/CONF.183/C.1/SR.35, para 8).

  14. 14.

    Additional Protocol II, Article 1(1).

  15. 15.

    ICTY, Prosecutor v. Tadić, IT-94-1-AR72, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para 70.

  16. 16.

    The Trial Chamber explains that the lists of factors provided in its judgment are not exhaustive. Other factors may be found in case law of the ICTY. See ICTY, Prosecutor v. Boškoski et al., IT- 04-82, Trial Judgment, 10 July 2008, paras 173–206. See also ICTY, Prosecutor v. Limaj et al., IT-03-66-T, Trial Judgment, 30 November 2005, paras 83–174; ICTY, Prosecutor v. Haradinaj et al., IT-04-84-T, Trial Judgment, 3 April 2008, paras 37–60.

  17. 17.

    ICTY, Prosecutor v. Limaj et al., ibid., para 84.

  18. 18.

    This conclusion was already anticipated by Sivakumaran on the basis of the decision of the Pre-Trial Chamber I on the confirmation of charges; see Sivakumaran 2009, pp. 377–380.

  19. 19.

    Rome Statute, Article 8(2)(a) and (b).

  20. 20.

    Pictet 1952, p. 32. This sentence was also quoted by Pre-Trial Chamber I in the confirmation of charges. (Pre-Trial Chamber I, Prosecutor v. Thomas Lubanga Dyilo, Decision on the confirmation of charges, ICC-01/04-01/06-803-tEN, 29 January 2007, para 207).

  21. 21.

    Pictet 1952, p. 32. For further details on the notion of international armed conflict in international criminal law, see Dörmann 2003, pp. 23–28.

  22. 22.

    ICTY, Prosecutor v. Tadić, IT-94-1, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para 70.

  23. 23.

    ICTY, Prosecutor v. Delalić et al. (“Čelebići Camp”), IT-96-21, Trial Judgment, 16 November 1998, para 184.

  24. 24.

    This view was most notably developed in International Law Association 2010, pp. 28–32.

  25. 25.

    This quote comes from ICTY, Prosecutor v. Tadić, IT-94-1-A, Appeals Judgment, 15 July 1999, para 137 (emphasis in the original).

  26. 26.

    This assessment has been questioned by K. Ambos. The author stresses that the Trial Chamber has itself recognized that parties to the non-international armed conflict had received support from States, namely the Democratic Republic of the Congo (providing support to the Armée du people congolais (APC)) and Uganda and Rwanda (providing support to the UPC/FPLC) (see Judgment, paras 553 and 554, 558) (Ambos 2012, pp. 115–153).

  27. 27.

    Pre-Trial Chamber I, Prosecutor v. Thomas Lubanga Dyilo, Decision on the confirmation of charges, ICC-01/04-01/06-803-tEN, 29 January 2007, para 220.

  28. 28.

    For detailed analyses of this provision, see Happold 2009 and Kurth 2010.

  29. 29.

    Article 4(3)(c) of APII reads: “children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities”. Article 38(2) of CRC reads: “States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities”.

  30. 30.

    Pre-Trial Chamber I, Prosecutor v. Thomas Lubanga Dyilo, Decision on the confirmation of charges, ICC-01/04-01/06-803-tEN, 29 January 2007, para 246.

  31. 31.

    International practice also shows that this prohibition has crystallized into customary international law, binding both States and non-state parties to armed conflicts. See Henckaerts and Doswald-Beck 2005, pp. 482–485. For a different view on the notions used in the Rome Statute, see the dissenting opinion of Justice Robertson of the Special Court of Sierra Leone, who declared that “‘(r)ecruitment’ is a term which implies some active soliciting of ‘recruits’, i.e., to pressure or induce them to enlist: it is not synonymous with ‘enlistment’” (Special Court for Sierra Leone, Prosecutor v. Samuel Hinga Norman, SCSL-2004-14-AR729E, Decision on preliminary motion based on lack of jurisdiction (child recruitment), 31 May 2004, Dissenting Opinion, para 27).

  32. 32.

    Sandoz et al. 1987, para 4557.

  33. 33.

    K. Ambos explains in this regard that “the interplay between (voluntary) enlistment and (compulsory) conscription prevents a punishability gap since any form of child recruitment (voluntary or not) is covered by the offence”, Ambos Ambos 2012, p. 134. In this sense, see also Happold 2009, p. 587.

  34. 34.

    OP-CAC, Article 2.

  35. 35.

    For more details on the conditions and limits of voluntary recruitment by States into armed forces under the OP-CAC, see Article 3.

  36. 36.

    A similar distinction also exists under ILO Convention 182 concerning the prohibition and immediate action for the elimination of the worst forms of child labour (1999). This Convention mentions among the different forms of the worst forms of child labor “all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict” (emphasis added) (Article 3(a)).

  37. 37.

    OP-CAC, Article 4.

  38. 38.

    The nature of this prohibition, whether legally binding or not under the OP-CAC, has been debated. See Vité 2011, pp. 27–28.

  39. 39.

    For further details on the OP-CAC, see Vandewiele 2006.

  40. 40.

    This is also the position adopted by the Special Court for Sierra Leone. See for instance Fofana and Kondewa, SCSL-04-14-A, Appeals Chamber, 28 May 2008, para 140.

  41. 41.

    For an interesting discussion on this point, see Ambos 2012, pp. 134–136.

  42. 42.

    See Graf 2012, p. 956.

  43. 43.

    In its decision on the sentence of 10 July 2012, the Trial Chamber did not elaborate on this question (Trial Chamber I, Situation in the Democratic Republic of the Congo in the case of the Prosecutor v. Thomas Lubanga Dyilo, Decision on sentence pursuant to Article 76 of the Statute, ICC-01/04-01/06-2901, 10 July 2012). It simply indicated that criteria to assess the gravity of the crimes that were committed and thus to determine the sentence include “the nature of the unlawful behaviour and the means employed to execute the crime” (para 44). On this basis, Thomas Lubanga received different sentences for the crimes of conscripting and enlisting children under 15, respectively 13 and 12 years’ imprisonment. In this gradation, the use of these children to participate actively in hostilities was considered the most serious crime and the related sentence was fixed at 14 years’ imprisonment (para 98). These differences in sentencing were however criticized by Judge Odio Benito in her dissenting opinion annexed to the decision of 10 July 2012 (paras 24–27).

  44. 44.

    The defense defines enlistment as “integration of a person as a soldier, within the context of an armed conflict, for the purposes of participating actively in the hostilities on behalf of the group” (ICC-01/04-01/06-2773-RED-tENG, para 34).

  45. 45.

    See Graf 2012, p. 959.

  46. 46.

    On the same line, see Ambos 2012, p. 133.

  47. 47.

    Paris Principles, para 2.0.

  48. 48.

    Ibid., para 2.1.

  49. 49.

    The Trial Chamber discusses the notion of association “with armed conflict” only (para 606).

  50. 50.

    The Trial Chamber does not however answer the question whether recruitment for sexual purpose is included in Article 8(2)(e)(vii) of the Statute. Under the Paris Principles recruitment for such purpose is explicitly considered a form of “association” with armed forces or groups covered by the scope of application of this instrument.

  51. 51.

    UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Report of the Preparatory Committee on the Establishment of an International Criminal Court, Draft Statute for the International Criminal Court, UN Doc. A/CONF.183/2/Add.1, 14 April 1998, p. 21, footnote 12.

  52. 52.

    API, Article 51(3); APII, Article 13(3); Henckaerts and Doswald-Beck 2005, r 6.

  53. 53.

    Melzer Melzer 2009.

  54. 54.

    Ibid., p. 9.

  55. 55.

    Ibid., p. 43. See also M. Happold, who reaches the same conclusion on the basis of Resolution 2675 of the UN General Assembly and jurisprudence of the ICTY and ICTR. Happold 2009, pp. 594–595.

  56. 56.

    Graf 2012, p. 963.

  57. 57.

    Urban 2012.

  58. 58.

    Special Court for Sierra Leone, Prosecutor v. Sesay, Kallon, Gbao (RUF Case), SCSL-04-15-T, Judgment, Trial Chamber I, 2 March 2009, para 1723.

  59. 59.

    Melzer 2009, pp. 46–64.

  60. 60.

    Ibid., p. 53.

  61. 61.

    Ibid., pp. 51–55.

  62. 62.

    Ibid., pp. 54–55. Example of such conduct include “the identification and marking of targets, the analysis and transmission of tactical intelligence to attacking forces, and the instruction and assistance given to troops for the execution of a specific military operation”; see Melzer Meler 2009, p. 55.

  63. 63.

    See Urban 2012.

  64. 64.

    Ibid.

  65. 65.

    Melzer 2009, p. 47.

  66. 66.

    GCI, Article 24-26; GCII, Article 36; GCIV, Article 20; API, Article 15; Henckaerts and Doswald-Beck 2005, r 3 and 25.

  67. 67.

    According to the ICRC, individual membership in an organized armed group other than dissident armed forces includes any person assuming “a continuous function for the group involving his or her direct participation in hostilities” (“continuous combat function”); see Melzer 2009, pp. 21–25, 32–34.

  68. 68.

    See Article 58(a) of API, which requires Parties to international armed conflicts to endeavor to remove civilians under their control “from the vicinity of military objectives”. See also Henckaerts and Doswald-Beck 2005, r 24.

  69. 69.

    The same question was raised regarding the use of children for sexual purposes, but the Trial Chamber did not take a position on this issue, stressing that this practice was not included in the decision on the confirmation of charges (para 629). Judge Odio Benito however, in her separate and dissenting opinion, suggested that sexual violence should have been included in a comprehensive legal definition of recruitment and active participation of children in hostilities, and as such should have been addressed in the Lubanga Judgment (paras 6–8). On this specific issue, see Aptel 2012; Graf 2012, pp. 965–966.

References

Documents

  • Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949 (CGI).

    Google Scholar 

  • Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949 (GCII).

    Google Scholar 

  • Geneva Convention (III) relative to the Treatment of Prisoners of War, 12 August 1949 (GCIII).

    Google Scholar 

  • Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, 12 August 1949 (GCIV).

    Google Scholar 

  • Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 (API).

    Google Scholar 

  • Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977 (APII).

    Google Scholar 

  • Convention on the Rights of the Child, 20 November 1989 (CRC).

    Google Scholar 

  • Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, 25 May 2000 (OP-CAC).

    Google Scholar 

  • Rome Statute of the International Criminal Court, 17 July 1998 (Rome Statute).

    Google Scholar 

Literature

  • Ambos K (2012) The first judgment of the International Criminal Court (Prosecutor v. Lubanga): A comprehensive analysis of the legal issues. International Criminal Law Review 12(2):115–153.

    Google Scholar 

  • Aptel C (2012) Lubanga decision roundtable: The participation of children in hostilities. Opinio Juris Blog: Opiniojuris.org/2012/03/18/lubanga-decision-roundtable-the-participation-of-children-in-hostilities. Accessed 7 December 2012.

    Google Scholar 

  • Dörmann K (2003) Elements of war crimes under the Rome Statute of the International Criminal Court: Sources and commentary, Cambridge University Press, Cambridge.

    Google Scholar 

  • Dupuy RJ, Leonetti A (1979) La notion de conflict armé à caractère non international. In: Cassese A (ed) The new humanitarian law of armed conflict, Editoriale scientifica, Naples, pp 258–276.

    Google Scholar 

  • Graf R (2012) The International Criminal Court and child soldiers, An appraisal of the Lubanga judgment. Journal of International Criminal Justice 10:945–969.

    Google Scholar 

  • Happold M (2009) Child recruitment as a crime under the Rome Statute of the International Criminal Court. In: Doria J, Gasser HP, Bassiouni C (eds) The legal regime of the International Criminal Court, Essays in honour of Professor Igor Blishchenko, Nijhoff, Leiden/Boston, pp 579–607.

    Google Scholar 

  • Henckaerts JM, Doswald-Beck L (eds) (2005) Customary International Humanitarian Law, Volume I: Rules, Cambridge University Press, Cambridge.

    Google Scholar 

  • ICRC (2008) How is the term “armed conflict” defined in international humanitarian law. www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdf. Accessed 31 October 2012.

  • International Law Association, Committee on the Use of Force (2010) Final report on the meaning of armed conflict in international law. www.ila-hq.org/en/committees/index.cfm/cid/1022. Accessed 31 October 2012.

  • Kurth ME (2010) The recruitment and use of child soldiers: some reflections on the prosecution of a new war crime. In: Stahn C, Van Den Herik L. (eds) Future perspectives on international criminal justice, TMC Asser Press, The Hague, pp 475–497.

    Google Scholar 

  • Melzer N (2009) Interpretive guidance on the notion of direct participation in hostilities under international humanitarian law, ICRC, Geneva.

    Google Scholar 

  • Pictet JS (ed) (1952) Commentary (I) of the Geneva Convention for the amelioration of the condition of the wounded and sick in armed forces in the field, ICRC, Geneva.

    Google Scholar 

  • Reisman WM, Silk J (1988) Which law applies to the Afghan conflict? American Journal of International Law 82:459–486.

    Google Scholar 

  • Sandoz Y, Swinarski C, Zimmermann B (eds) (1987) Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC, Geneva.

    Google Scholar 

  • Schabas WA (2010) The International Criminal Court: A commentary on the Rome Statute. Oxford University Press, Oxford.

    Google Scholar 

  • Schindler D (1982) International humanitarian law and internationalized internal armed conflicts. International Review of the Red Cross 230:255–264.

    Google Scholar 

  • Sivakumaran S (2009) Identifying an armed conflict not of an international character. In: Stahn C, Sluiter G (eds) The emerging practice of the International Criminal Court, Nijhoff, Leiden/Boston, pp 371–380.

    Google Scholar 

  • Stewart J (2003) Towards a single definition of armed conflict in international humanitarian law: A critique of internationalized armed conflict, International Review of the Red Cross 85/850:313–349.

    Google Scholar 

  • Urban N (2012) Direct and active participation in hostilities: The unintended consequences of the ICC’s decision in Lubanga, EJIL Talk. www.ejiltalk.org/direct-and-active-participation-in-hostilities-the-unintended-consequences-of-the-iccs-decision-in-lubanga. Accessed 7 December 2012.

  • Vandewiele T (2006) Optional Protocol, The involvement of children in armed conflict, Nijhoff, Leiden/Boston.

    Google Scholar 

  • Vité S (2009) Typology of armed conflicts in international humanitarian law: legal concepts and actual situations. International Review of the Red Cross 91/873:69-94.

    Google Scholar 

  • Vité S (2011) Protecting children during armed conflict: international humanitarian law. Human rights and international discourse 5(1):14–39.

    Google Scholar 

Download references

Author information

Authors and Affiliations

  1. Bilkent University, Ankara, Turkey

    Sylvain Vité

Authors
  1. Sylvain Vité
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Sylvain Vité .

Editor information

Editors and Affiliations

  1. Criminal Law, Section Military Law, University of Amsterdam and Netherlands Defence Academy, Amsterdam/Breda, The Netherlands

    Terry D. Gill

  2. School of Law, University of Glasgow, Glasgow, United Kingdom

    Robin Geiß

  3. University of Leiden Kamerlingh Onnes Gebouw, Leiden, The Netherlands

    Robert Heinsch

  4. Melbourne Law School, Carlton, Victoria, Australia

    Tim McCormack

  5. T.M.C. Asser Instituut, The Hague, The Netherlands

    Christophe Paulussen

  6. T.M.C. Asser Instituut, The Hague, The Netherlands

    Jessica Dorsey

Rights and permissions

Reprints and permissions

Copyright information

© 2014 T.M.C. ASSER PRESS, The Hague, The Netherlands, and the author(s)

About this chapter

Cite this chapter

Vité, S. (2014). Between Consolidation and Innovation: The International Criminal Court’s Trial Chamber Judgment in the Lubanga Case. In: Gill, T., Geiß, R., Heinsch, R., McCormack, T., Paulussen, C., Dorsey, J. (eds) Yearbook of International Humanitarian Law Volume 15, 2012. Yearbook of International Humanitarian Law, vol 15. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-90-6704-924-5_4

Download citation

Publish with us

Policies and ethics

Societies and partnerships

Search

Navigation