Law as shield, law as sword : the ICC’s Lubanga decision, child soldiers and the perverse mutualism of participation in hostilities
Host item entries:
The University of Miami national security and armed conflict law review, Vol. 3, summer 2013, p. 106-124
The International Criminal Court's Lubanga decision has been hailed as a landmark ruling heralding an end to impunity for those who recruit and employ children in armed conflict and a pivotal victory for the protection of children. Overlooked amidst this self-congratulation is that the ICC incorrectly applied the law governing civilian participation in hostilities which perversely places child soldiers at greater risk of being attacked. The Court created a false distinction between active and direct participation in hostilities. Expanding the kinds and types of behaviors that constitute children actively participating in hostilities expanded Lubanga's liability. But under the law of armed conflict active and direct refer to the same quantum of participation. And when a civilian, including a child soldier, directly participates in hostilities, they lose a pivotal protection - the protection from being made the lawful object of attack. The ICC's first verdict confuses an already opaque area of the law. Worse, the ICC now provides the international legal imprimatur for the permissible targeting of child soldiers under a wider range of circumstances than previously recognized.