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

Chapter
Part of the Yearbook of International Humanitarian Law book series (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.

Keywords

Rome Statute of the International Criminal Court International humanitarian law Armed conflict Recruitment of children Participation in hostilities War crime 

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Copyright information

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

Authors and Affiliations

  1. 1.Bilkent UniversityAnkaraTurkey

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