Intra-party sexual crimes against child soldiers as war crimes in Ntaganda : ‘Tadić moment’ or unwarranted exercise of judicial activism ?
Luca Poltronieri Rossetti
Host item entries:
Questions of international law, zoom-in 60, 2019, p. 49-68
The present contribution aims at clarifying the terms of the normative conundrum regarding the possibility to characterize conducts of sexual violence against child soldiers in intra-party relations as war crimes in non-international armed conflict (NIAC), with particular regard to the relationship between the Rome Statute and the underlying framework of international humanitarian law. It goes on to analyze the diverging interpretive solutions provided by the Pre-Trial, Trial and Appeals Chamber (PTC, TC and AC, respectively) of the International Criminal Court in Ntaganda, in reaching the shared conclusion that intra-party sexual crimes committed against child soldiers could constitute war crimes under the Rome Statute. A critical assessment of the reasoning of the Chambers — particularly that of the TC and AC — is then conducted both from an international law point of view and from an international criminal law (ICL) point of view. The additional issues connected to the legal characterization of these conducts when involving children associated with terrorist groups are also briefly analyzed. The article concludes by assessing the scope of the recent case law and its potential consequences on the future development of both IHL and ICL, suggesting that progress in the protection of children in armed conflict cannot be achieved solely through the judicial extension of individual criminal liability for war crimes.
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