Child soldiers according to jurisprudence of the International Criminal Court

International Criminal Court (ICC) was decided about child soldiers in Lubanga Case. He
found guilty, on 14 March 2012, of the war crimes of enlisting and conscripting children
under the age of 15 years and using them to participate actively in hostilities (child soldiers).
Thomas Lubanga was the President of the Union des Patriotes Congolais ("UPC") the Force
Patriotique pour la Libration du Congo ("FPLC") in the Democratic Republic of the Congo
(DRC).1

The Chamber is satisfied beyond reasonable doubt that:

The accused and his co-perpetrators agreed to, and participated in, a common plan to
build an army for the purpose of establishing and maintaining political and military
control over Ituri. As a result of the implementation of this common plan, boys and
girls under the age of 15 were conscripted and enlisted into the UPC/FPLC between 1
September 2002 and 13 August 2003.

The UPC/FPLC used children under the age of 15 to participate actively in hostilities
including during battles. They were used, during the relevant period, as soldiers and as
bodyguards for senior officials including the accused.

Thomas Lubanga was the President of the UPC/FPLC, and the evidence demonstrates
that he was simultaneously the Commander-in- Chief of the army and its political
leader. He exercised an overall coordinating role as regards the activities of the
UPC/FPLC. He was informed, on a substantive and continuous basis, of the operations
of the FPLC. He was involved in the planning of military operations, and he played a
critical role in providing logistical support, including providing weapons, ammunition,
food, uniforms, military rations and other general supplies to the FPLC troops. He was
closely involved in making decisions on recruitment policy and he actively supported
recruitment initiatives, for instance by giving speeches to the local population and the
recruits. In his speech at the Rwampara military camp, he encouraged children
including those under the age of 15 years, to join the army and to provide security for
the populace once deployed in the field after their military training. Furthermore, he

1 Lubanga Case, ICC-01/04-01/06, 14 march 2012

 personally used children below the age of 15 amongst his bodyguards and he regularly
saw guards of other UPC/FPLC staff members who were below the age of 15.

In Ongwen Case2, Dominic Ongwen was charged, among other crimes, for use of children
under the age od 15 to participate actively in hostilities, allegedly committed after 1 July
2002 in northern Uganda. The case is open yet, but there are many useful and relevant
conclusions for this theme. In issuing the warrant of arrest, Pre-Trial Chamber II found
that civilians, including children, are believed to have been abducted and forcibly
"recruited" as fighters, porters and sex slaves to serve the Lord's Resistance Army
(LRA) and to contribute to attacks against the Ugandan army and civilian communities.
The expanded charges against Dominic Ongwen also include sexual and gender-based
crimes committed from 2002 to 2005 in Sinia Brigade forced marriage, rape, torture,
sexual slavery, and enslavement and the conscription and use of children under the age
of 15 to participate actively in hostilities from 2002 to 2005, in Sinia Brigade. The
Ongwen case is far from straightforward, since Ongwen says he too was abducted at the
tender age of nine by the LRA. He arguably had little choice in becoming an alleged LRA
commander and mass criminaleven potentially towards other child soldiers abducted
years after he was. Under Article 8 of the Rome Statute 3, war crimes against child soldiers
include conscripting or enlisting children under the age of 15 years, or using them to
participate actively in hostilities. Fortunately the 3-year gap can be remedied by an
amendment to the Rome Statute in accordance with Article 121, by raising the child
soldier age criteria to under the age of 18 instead of under 15 (or as some argue by
potentially lowering the minimum age for criminal liability to 15). 4 Such an amendment to
the child soldier provisions is supported by an international trend towards raising the age
to 18, whereas the outdated Rome Statute provisions are drawn from the 1977 Additional
Protocols I (Article 77(2)) and II (Article 4(3)(c)) to the Geneva Conventions (1949) and
the Convention on the Rights of the Child (1989) which set 15 as the minimum age for
recruitment or use in armed conflict. Support has been steadily growing towards raising

2 Ongwen Case, ICC-02/04-01/15

3 Rome Statute, 17 July 1998

4 Danya Chaikel, The ICCs Child Soldier Provisions: Time to Close the Three-Year Gap, 18 august
2015
 the minimum age.5 The Optional Protocol to the Convention on the Rights of the Child on
the involvement of children in armed conflict (2000) provides in Article 1 that States
Parties must ensure that members of their armed forces directly participating in hostilities
are at least 18 years of age. On a regional level, the Organisation of African Unity (now
the African Union) adopted the African Charter on the Rights and Welfare of the Child
(1990) which defines children as all persons below the age of 18, and Article 22.2 stresses
that no child shall take a direct part in hostilities and that States Parties to the Charter
shall refrain in particular, from recruiting any child. Most recently, the Paris Principles
and Guidelines on Children Associated with Armed Forces or Armed Groups (2007)
which have been endorsed by over 100 countries, define a child soldiers in Article 2.1 as
any person below 18 years of age who is or who has been recruited or used by an armed
force or armed group in any capacity, including but not limited to children, boys and girls,
used as fighters, cooks, porters, messengers, spies or for sexual purposes. It does not only
refer to a child who is taking or has taken a direct part in hostilities. The UNs Office for
the Special Representative of the Secretary-General for Children and Armed Conflict,
established in 1996, also uses the Paris Principles definition, therefore applying the under
18 criteria. The current Special Representative Leila Zerrougui, together with UNICEF,
launched the campaign Children, Not Soldiers in 2014, which seeks to galvanize support
to end and prevent the recruitment and use of children by national security forces by
2016 and which was endorsed by UN Security Council in Resolution 2143 (2014).
Strikingly, paragraph 5 of Resolution 2143 exposes the ICCs outdated provisions by
recalling that the conscription, enlistment, and use of children under the age of 15 may
constitute a war crime under the Rome Statute and then noting that the provisions of the
Optional Protocol to the Convention on the Rights of the Child on the involvement of
children in armed conflict requires a minimum age of 18 for compulsory recruitment and
participation in hostilities. The ICC is lagging behind internationally, and according to a
leading human rights organisation, Child Soldiers International, there is already wide
acceptance that 18 years of age should be the universal international legal
thresholdotherwise known as the straight 18 ban. Moreover, nearly two thirds of UN
members states have established in law or otherwise committed to a minimum military
recruitment age of 18 years. Professor Mark Drumbl, an international law expert has
observed that this notion is spreading and international laws trend-line arcs towards the

5 Ibid.
 Straight 18 horizon. For the defense, then, Ongwen is forever a child in mind, spirit, and
agency. His victims have to accept that, regardless of how bitter a pill that is to swallow.
For the Prosecution, Ongwen seems never to have been a child, let alone a child socialized
in the LRA.6 He is taken up as an adult, since the ICC only has jurisdiction over adults, as
if he were born as an adult. On 6 September 2016, the ICC Chief Prosecutor submitted her
Pre-Trial Brief, which details all the charges and Ongwens position of authority. This 285
page long document makes no mention whatsoever of Ongwens background. While it
extensively unpacks hardships endured by child soldiers in Ongwens brigade, and the
brutally coercive nature of the LRA, it is totally (and ironically) silent with regards to the
brutalities and coercion that Ongwen himself had endured. So far, the Prosecution has had
the better of it. The Pre-Trial Chamber rejected the duress arguments at the confirmation
of charges hearing. The Pre-Trial Chamber elided Ongwens status as former child soldier.
Its as if he ceded that status, or forfeited it. Ongwens victimhood is contingent. He lost it
because of what he went on to do. Irrespective of how high he ascended, however,
Ongwens point of entry remains fixed as a young, kidnapped, orphaned, and abused
child. Ongwens defense team invoked this point of entry in its submissions. 7 Defense
counsel did so to make two specific legal points. First, that the ongoing and continuous
nature of the crime of child soldiering means that Ongwen left the LRA nearly thirty
years later still as a child soldier and, thereby, that he should be entitled to the
evacuation of individual criminal responsibility that hortatorily inheres in the international
legal regime that protects child soldiers. Second, the defense team submitted that coming
of age in the LRA amounts to a kind of institutionalized duress that excludes criminal
responsibility under Rome Statute article 31(1)(d) rather than just mitigating
sentence. According to the defense, Ongwen lived most of his life under duress (i.e. from
the age of 9.5 years old) and his so-called rank was demonstrative of one thing: that he
was surviving better than others while under duress. In response to the defenses
emphasis on Ongwens entry into the LRA as an abducted child, PTC II held that the
circumstances of Ongwens stay in the LRA [] cannot be said to be beyond his
control [.] PTC II concluded that escapes from the LRA were not rare. It
underscored that Ongwen could have chosen not to rise in hierarchy and expose himself

6 Mark A. Drumbl, A former child soldier prosecuted at the ICC, 26 september 2016

7 Mark Kersten, Shifting Narratives: Ongwen and Lubanga on the Effects of Child Soldiering, 20
april 2016
to increasingly higher responsibility to implement policies. It added that the evidence
demonstrates that Dominic Ongwen shared the ideology of the LRA, including its brutal
and perverted policy with respect to civilians. PTC II noted that Ongwen could have
avoided raping forced wives, or, at the very least, he could have reduced the brutality of
the sexual abuse.