Volume 71

Number 1

Spring 2014

The International Criminal	24
Court and Lubanga: The
Feminist Critique and
Jus Cogens
Eric Allen Engle

Eric Allen Engle

THE INTERNATIONAL CRIMINAL COURT AND LUBANGA: THE FEMINIST CRITIQUE AND JUS COGENS

The Lubanga decision, despite procedural missteps, further anchors the prohibition of child soldiers and child auxiliaries under international law. Feminist criticisms of Lubanga misapprehend the potential of Lubanga to attain the types of legal victories feminists strive for. While one can criticize Lubanga as a matter of procedure,Lubanga methodically strengthens the pro- hibitionofchildsoldiery.Theprohibitionofchildsoldiers,liketheprohibition of wartime rape, forced prostitution, and child sex-tourism are becoming jus cogens norms.Lubanga contributestothiscoherenceofjuscogensand sets the stage for extension of its logic into other wrongs committed against children.

Introduction

Charles Lubanga was tried before the International Criminal Court (ICC) and found guilty of the war crime of recruiting and using child soldiers. De- spite arguments made by representatives of victims, the ICC pretermitted a decision as to whether subjecting young females to rape or forced marriage (essentially rape) constituted a violation of the statute prohibiting enlistment and recruitment of children into armed conflicts because the prosecution did not adduce evidence of sexual violence and did not rely on proof of such in making its case, while arguing that such crimes are prosecutable under the statute. The court held:

Regardlessofwhethersexualviolencemayproperlybeincludedwithinthescope of ‘using [children under the age of 15] to participate actively in hostilities’as a matter of law, because facts relating to sexual violence were not included in the Decision on the confirmation of Charges, it would be impermissible for the ChambertobaseitsDecisionpursuanttoArticle74(2)ontheevidenceintroduced during the trial that is relevant to this issue.”1

The decision did not, however, limit possible prosecution to direct par- ticipation in combat activities, saying “the decisive factor . . . is whether the support provided by the child to the combatants exposed him or her to real danger as a potential target.”2

The decision of the (ICC), though marked and possibly marred by proce- duralproblems,strengthenstheglobalnormagainstchildsoldiersandextends the prohibition of child soldiery to cover child auxiliaries. Thus, despite pro- cedural missteps, the Lubanga decision is a step in the right direction. Well-

_________________________

EricAllenEngle(JD,DEA,LLM,Dr.Jur.)More of his works are available at http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=879868.

the international criminal court and lubanga

25

intended feminist criticisms of Lubanga as ignoring sex and gender aspects of the case do not recognize thatLubanga expands the norm prohibiting child soldiers to cover child auxiliaries, whether in national or international armed conflicts. Because of this “build out” Lubanga can serve as a stepping stone toward prohibition of war time rape and forced prostitution, whether such crimesareameansofgenocideoramotivationtosoldiery.TheLubanga deci- sion implies that girl soldiers, child prostitutes and compelled “child brides” are, like human shields and “entertainers,” prohibited under international law as military auxiliaries because they are subject to being targeted during nationalandinternationalarmedconflicts. Lubanga is, moreover, anotherstep toward a jus cogens prohibition of child soldiers, child auxiliaries, and child sex workers.3 The emerging global norm prohibits the use of child soldiers because children cannot give fully informed consent due to their lack of ex- perience and maturity. So, despite well intended feminist and anti-imperialist criticism,4 the Lubanga decision has garnered praise for preventing the use of child soldiers throughout the world,5 for example in Nepal.6 Even critics of deterrence theory7 in criminal law appear compelled to recognize that the Lubanga decision has contributed positively to ending child soldiery8 by raising awareness of the problem of child soldiers and the impact that being a war child has on one’s life.9

Although the rule of international law prohibiting child soldiery is cogent, it is relatively recent and still emerging. The prohibition of child soldiery, like most norms involving children under international law, is not yet part of jus cogens, i.e., a non-derogable rule of international law.10 However, the law is developing toward inclusion in jus cogens and change is surely coming. Oth- ers have also argued that the prohibition of child soldiery is becoming a jus cogens norm.11 The Lubanga decision is a crystallization of the global norm prohibiting the use of children as soldiers and is another step in the direction of a jus cogens prohibition of child soldiery.

This article first examines the procedural problems in Lubanga (I). Then it exposes and contextualizes the feminist critique of the Lubanga decision (II). It then examines the substantive law of child soldiers under international law (III). It concludes with an argument that prohibitions on child soldiery, like the crime of systematic rape in war, are becoming jus cogens rules of international law (IV).

I. Procedural Problems in Lubanga

TheICCseekstoendimpunityforgravebreachesofthemostseriousrules of international criminal law.12 The ICC is a hybrid of common law and civil law.13 This hybridization and the novel nature of the court explain why the first trial14 concluded at the ICC was characterized by procedural problems.15 Despite the obstacles, the Lubanga decision demonstrates the capacity of the ICCtoadjudicateinternationalcrimes.16 TheproceduralproblemsatLubanga

26	national lawyers guild review

can be organized legally around the idea of the rights of the accused and practically in terms of the order in which they arose. The various procedural problems are all interrelated. They are discussed here in order of appearance.

A. Prosecutorial discretion

In any criminal justice system, the prosecutor is vested with at least some degree of discretion as to which crimes s/he wishes to prosecute. At the ICC the “prosecutor … has the ability to determine which charges s/he wishes to prosecutewiththelimitedsupervisionofthePre-TrialChamberoftheICC.”17 In Lubanga, the prosecutor decided not to bring charges for rape and forced sexual servitude.That decision has been criticized by some feminists but was within the prosecutor’s discretion. Similarly, the prosecutor had discretion to choose to charge the defendant for a violation of the law of international armed conflict or national armed conflict or both.

B. Discovery and disclosure

The most evident procedural problem in Lubanga involved the right to discovery of confidential “lead” evidence18 and the prosecution’s duty to disclose potentially exculpatory evidence.19 That is, a conflict between pros- ecutorial power and the rights of the accused. “None of the statutes or rules of ICC tribunals provide clear guidance on how this conflict is to be resolved or articulate remedies when it cannot be.”20

Arelatedproblemisthequestionwhetherandtowhatextenttheprosecution before the ICC may “outsource” evidence gathering to third-parties.21 Third party investigators are at higher risk of reprisals than state or international officials because they are not directly backed by state-power, though they have the advantage of being “locals” and non-uniformed and thus are better able to ferret out the facts. However, the existence of such dangers and even the threat of reprisal are not unique to the ICC, nor are these insurmountable problems.22 Lubanga determinedthatwhiletheprosecutionhasarighttoseek information and a duty to protect witnesses it also has a duty to the accused to disclose evidence which would tend to exonerate the accused.

C. Witness participation

Another problematic point in Lubanga was the participation of victims, whetheraswitnessesorobservers.23 Essentially,themultiplicityofparticipants resulted in a “layered judiciary” which complicated the proceedings.24 The problem was not merely due to the failings of the prosecutor. It was also due to the participation of so many persons whether as witnesses, observers, or active participants in the prosecution:25 “too many cooks spoil the broth,” so to speak. The trial became encumbered by too many participants with little relevance to the actual charged crime.

Victimparticipationisseenasapartoftherapeuticjurisprudence.Therapeutic jurisprudence is the idea that the victim has a legitimate interest in a court pro-

the international criminal court and lubanga

27

ceeding which allows them to process their pain and move on from it, and that courtsshouldtakethisfactintoaccountalongsidepreventionandpunishmentas legitimate concerns of criminal law.Although the great number of participants bogged the trial down, some feminists criticized what they perceived as a lack of adequate witness participation26 to serve the therapeutic function.

D. Witness protection

Witness participation also raised the problem of witness protection, which was related to the problems of confidentiality (of witnesses) and disclosure of exculpatoryevidencebytheprosecution.27 Therighttoconfrontone’saccusers is recognized in common law under the rubric of “the right to confrontation” of one’s accuser and in French law as one of the “droits de la défense.” The right to confrontation is a basic criminal procedural right of self defense— how, after all, can one defend him or herself properly without knowing the accuser?Yethowareaccusersandwitnessestobeprotectedagainstreprisals? This of course requires a “balancing” i.e., a comparison, of the right of the accused to know his or her accuser and the rights of accusers and witnesses not to face (illegal, out of court) reprisals—that is, not to be victims of extra- judicial vengeance.28

E. Prosecutorial abuse: non-disclosure & temporary stay of proceedings

Theexistenceofprosecutorialdiscretioncreatesthepossibilityoftheabuse ofthatdiscretion.IntheLubanga trialthekeyproceduralproblemwasanabuse of prosecutorial power: namely, the non-disclosure of exculpatory evidence. Whether at common law or civil law the prosecutor must disclose evidence to the court and/or defense which exculpates the defendant. Otherwise, wrong- ful convictions might result. However, the prosecution in Lubanga wished to keep information such as the identities of accusers and informants secret, tainting the trial. This taint led to the unusual step of a stay in proceedings29 andthe(ultimatelytemporary30)releaseofLubangaduringthecourt’ssuspen- sion of proceedings.31 The desire to protect witnesses is understandable, but must be balanced against the right of the defendant to confront their accusers and certainly does not justify the non-disclosure to the court of exculpatory evidence. As a result of this clear abuse the ICC took the extremely unusual step of staying the proceedings. Ultimately, however, the trial resumed after the procedural problem was resolved to the satisfaction of the court.This was the most serious procedural misstep, but it ultimately did not stop the just adjudication of the case.

II. The feminist critique of the Lubanga decision

Given the procedural missteps, criticism of Lubanga is understandable, although in my opinion misplaced. The most strident criticism of Lubanga comes from feminist quarters. That criticism is understandable, because the prosecutor in Lubanga did not charge gender or sex-related crimes32 and was

28	national lawyers guild review

cautious, perhaps overly cautious, in that regard.33 Thus, the Lubanga court tended to gloss over the sex and gender aspects of the systematic abuse of children in the Democratic Republic of the Congo (DRC). Here is a fairly typical example of the feminist critique::

Unfortunately,intheLubanga trialtheCourtchosenottodevelopgender-based crimes, including the gendered aspects of child soldiering, further. It may be argued that the prosecutor’s decision to charge Lubanga with the war crime of recruitment and use of child soldiers was guided by the wish to develop this particular norm. However, the Court should consistently prioritize particular crimes that have so far been undervalued, such as crimes of sexual violence. With regard to the Court establishing and advancing global norms, victim participation could complement and assist the Court in establishing the truth.34

A. Therapeutic jurisprudence

Part of the logic of hearing claims about wartime rape and sex slavery is therapeutic. “By bringing about appropriate charges, the victims are more apt to deal with the physical violation.”35 Thus, “legal representatives of female child soldiers spoke at length during their opening statements not only about the fact that girl soldiers had been subjected to various forms of sexual and gender-based violence, but also about the broader context and the long-term effects of such violence.”36 From a therapeutic perspective, too few victims were allowed to testify, but from a procedural perspective too many were allowed to testify about facts which were legally irrelevant to the crimes charged.Again, this is a balancing of competing interests, but this one likely cannot be perfectly resolved.

B. Correct legal method

Given the activist criticisms of Lubanga, before addressing the substan- tive lex lata and lex ferenda in the field of child soldiers I wish to suggest the correct legal method so that future activism will be effective at attaining concrete results.

Internationallawisoftenrightlycriticizedforbeingambiguous(contradic- tory general principles)37 and uncertain (customs rise and fall) and for lacking a central enforcement mechanism.38 Domestically, the state may seem all- powerful, but internationally it is otherwise. States in the international system are like fragile lifeboats, to which we take refuge, in hopes of surviving the maelstrom, the winds of war, disaster, and disease.39 We cling to life like we cling to justice, and we have no choice but to repair to the state for refuge. The state offers us not only the means of our survival but also the means to the end of the good life in society40 But international society is anarchical41 and prone to crises. Given the shaky state of international law, ever changing and uncertain, I argue that the best activist strategy is to work within existing recognized international legal categories, to narrow, broaden, or extend them as appropriate—to expose and extirpate ambiguity and contradiction to attain

the international criminal court and lubanga

29

the rule of law and substantive justice rather than to try to generate exotic novel claims on the basis of wild theories, which are likely to fail. There are pragmatic reasons I recommend an incremental approach such as we see in Lubanga. First, whyreinventthewheel?Progressinscienceoccursbytestingandrefininghypoth- eses, not by throwing them out at any time to generate new (untested) hypotheses. Second,courtsareskeptical.Third,doubtfulclaimsfailinthefaceoftheburdenof proof. A novel theory might seem exciting but will it lead anywhere? In contrast, building out from irrefutable rules to better and more refined rules, as theLubanga decision does, seems to be a more certain way to achieve justice and the rule of law than by gambling on radical grand theories which generally fail to be taken up in practice, despite (or because) of their novelty.Attractive norms persuade more oftenthantheycompel,andpeoplearemoreeasilypersuadedtoadapttowhatthey know rather than adopt what they do not know. It’s a question of effective advo- cacy, of what actually works in the real world, not the ivory tower or the barracks.

III. Substance: Child soldiers in international law

Lubanga is procedurally anegativeexample:ad astra per aspera. Asuccess despiteitself.However,substantively, Lubanga isapositiveexample.Thedeci- sion did not appear togoasfarassomefeministswouldhaveliked.However, in fact, Lubanga represents a strengthening of the norm against child soldiers and sets the stage for the types of legal victories feminists rightly strive for.

The international norm prohibiting child soldiers may seem a self-evident legal proposition. However, the prohibition of child soldiers as a rule of in- ternational law dates only from the 197742 Additional Protocol to the Geneva Conventions.43 Yet the norm, though recent, has taken the world by storm. It quickly found resonance and replication in other international instruments. Thus, the African Charter on the Rights and Welfare of the Child (1990) requires State parties to “take all necessary measures to ensure that no child shall take a direct part in hostilities and refrain in particular, from recruiting anychild.”44 TheRomeStatute45 oftheICC(1998)likewisecriminalizeschild soldiery.EchoingthetwoprohibitionsoftheGenevaAdditionalProtocols,the Rome Statute prohibits child soldiery both in internal armed conflicts and in international armed conflicts. The rule outlawing child soldiery was echoed again in an Additional Protocol to the U.N. Convention on the Rights of the Child (CRC) in 2000.46 Child soldiery is also prohibited in the domestic laws of many countries,47 often with extraterritorial effect.48 The legal prohibition ofchildsoldieryhasbecomenearlyuniversal.Becauseofthenearlyuniversal adhesion of states to these treaties and because of the number of these treaties a customary international norm prohibiting the recruitment or use of child soldiers in armed conflicts, whether national or international, has formed.49 Moreover, because child soldiering is an obvious violation of basic human dignity, the right to life, and the right to development, its prohibition should be seen as an emergent jus cogens norm,50 along with the prohibition of child

30	national lawyers guild review

sex-tourism.51 Child soldiers are associated with child prostitutes, wartime rape, mercenaries and terrorists and all of these are of concern to the inter- national system as a system, not merely to individual States severally, which also justifies seeing these as violations of jus cogens.

A.Structuring public international law: The law of war, international human rights law, and international criminal law

We can divide public international law into at least these branches: the law ofwar(alsoknownasinternationalhumanitarianlaw,consistingofjus ad bello and jus in bello),internationalhumanrightslaw,andinternationalcriminallaw.

Childsoldieryisanexampleofanareawherethelawsofwar(international humanitarian law—IHL) international human rights law (IRHL) and inter- national criminal law (ICL) overlap and in my opinion are complementary, not conflicting. However, Adil Ahmad Haque argues that IHL and ICL are structurally inadequate. Haque states:

There is a gap between the international humanitarian law of Geneva and the international criminal law of Rome, a gap between the law we have and the law we need if we are to ensure respect for and protection of the civilian popula- tion caught in the midst of armed conflict. The Rome Statute of the ICC fails to fully enforce four core principles of humanitarian law designed to protect civilians:distinction,discrimination,necessity,andproportionality.Asaresult,it is possible for a combatant with a culpable mental state, without justification or excuse,andinviolationofhumanitarianlaw,tokillciviliansyetescapecriminal liability under the Rome Statute. The Rome Statute also ignores or misapplies threefundamentalcriminallawdistinctions:betweenconductoffensesandresult offenses, between material elements and mental elements, as well as between offenses and defenses.52

I don’t regard Haque’s claim as entirely well founded, because ICL is intended only to inculpate the gravest and most serious offenses: systematic intentional crimes committed by “leaders” (demagogues, really)—the “big fish.” The “small fish” are meant to be held liable in national law. This is be- cause wars involve literally millions of people. No international court could hope to litigate each and every case. But what the ICC can and tries to do is to catch “the big fish” to set an example provide guidance for national courts to emulate.HaquecorrectlyrecognizesthedifferentperspectivesofIHLandICL (ex ante and ex post, respectively).53 However, that difference in perspective is not a contradiction or a gap in legal regulation. The difference in perspec- tive between IHL and ICL is because IHL is primarily about coordinating a State’s actions with its interactions (ex ante), whereas ICL is primarily about inculpating individuals who commit serious breaches of international law in a grave and systematic manner (ex post). What Haque describes as “a gap” is actually an overlap. IHL and ICL have different objects and purposes, but sometimes overlap due to the transformation of international law in the post- Westphalian era from “states, only, with absolute rights” to “states and non-

the international criminal court and lubanga

31

state actors, with relativized rights.” If there were a “gap” here, IHRL would be the bridge between duties of individuals and rights of states.

With this teleological understanding of the norm and an understanding of thestructureofinternationallaw(IHL,IHRL,ICL)wecannowtry toaddress the four refinements of the norm against child soldiers.

B. Structuring international humanitarian law:

The domestic/international and public/private splits

Just as we structure public international law into at least the three branches of IHL, IHRL, and ICL, we also structure international law generally using the domestic/international and public/private splits.

As can be seen from the treaties cited, the prohibition of child soldiery is a “bifurcated” norm. Child soldiery is prohibited in all four quadrants, (public/ private; state/non-state actor). Child soldiery is absolutely prohibited under international law, whether the soldiers are recruited or conscripted, whether by public or private actors and whether in domestic or international conflicts. The fact that all actors in all conflicts are forbidden to recruit or conscript or use child soldiers is evidence that the international law against child soldiery has emerged as a universal and non-derogable rule of international law (jus cogens). The use or recruitment of child soldiers (a) in domestic armed conflicts and (b) in international armed conflicts by (i) State Parties and (ii) Non-State Actors is prohibited under international law.

The “public/private” and “national/international” splits structure law and hopefully enable legal certainty and enable justice to be attained. However, theyalsocreateariskoffragmentation.Thenorm,whichseemssostraightfor- ward and self-evident at first glance, becomes more complex as we consider it in finer detail. However, we have to understand each of these four strands of the norm are expressions of one common core concept which seeks to at- tain the substantive goal of the law. These are four refined emanations of one common idea.

To understand the contours of the norm against child soldiers we must understand these splits. Historically, jus in belloand jus ad bellowere largely if not exclusively coordinating rules directed to state actors and their agents. The main conflicts of the 19th Century and even most conflicts of the 20th Century were international armed conflicts between States. That is no longer the case. In recent decades conflicts increasingly involve non-state actors and areoftenpurelyinternaldomesticinsurrections.Eveninter-stateconflictsoften involve non-state actor combatants, whether as revolutionaries (targeting the state, seeking state power) or terrorists (targeting civilians and not necessar- ily seeking to seize state power) or proxies. The rise of non-state actors and nationalarmedconflictsexplainswhyfourrefinementsononeideaareneces- sary in order to subdue and minimize violent human conflicts.

32	national lawyers guild review

Non-state actors such as insurgents and terrorists with belligerent rights andlegaldutiesunderinternationallawareapost-Westphalianlegalphenom- enon. However, the question facing the post-Westphalian law of war is the same as faced theWestphalian system (1684-1945/1989): how to prevent and limit violence. The answer is also nearly the same: war is to be prevented and concluded primarily through state power and state responsibility. However, international law has become more than merely a coordinating mechanism between states. As well as coordinating state interactions, international law now also guarantees certain limited individual human rights to non-state ac- tors. Such rights include the right not to be made a sex slave or a child soldier. International human rights law (IHRL) is the primary international guarantor of basic human rights, although secondarily there are human rights aspects of the law of war (IHL).

1. Armed conflicts: National, international, or mixed

We just saw that we can divide public international law into at least IHL, IHRL, and ICL. We now examine the division within IHL between domestic armed conflict (internal armed conflicts) and conflicts between States (in- ternational armed conflicts). This structural split between two branches of IHL is reflected in both the Additional Protocols to the Geneva Conventions and the Rome Statute, which distinguish international from national armed conflicts,prohibitingtherecruitment(i.e.conscriptingorenlisting)54 oractive use of child soldiers in armed conflicts, at least by state parties.55 How did this bifurcation play out in Lubanga?

In the Lubanga trial the prosecution only charged a violation of the law of non-international armed conflict. However, this was then unilaterally rechar- acterized by the court underArticle 61(7)(c)(ii) of the Rome Statute to charge a violation of the law of international armed conflict. The pre-trial chamber (PTC) then found that “for the most part the armed conflict in question (be- tween July 2002 and 2 June 2003) was one of an international character, due tothepresenceoftheUgandanarmyasanoccupyingpowerinpartsofIturi”56 and thus governed by Article 8(2)(b) of the Rome Statute.57 The question facing the court was whether the conflict in the Democratic Republic of the Congo (DRC) was domestic, international, or mixed. The pre-trial chamber “opted for a sequenced international/non-international solution, arguing that the conflict was international as long as the Ituri region was occupied by the Ugandan army (until 2 June 2003) but then changed to a non-international one (until end of December 2003).”58 At the PTC national armed forces were determined to be not limited to the military forces of the state and thus could include proxy soldiers or state sponsored terrorists.59

The Trial Chamber in contrast “relied on a relational concept of armed conflictbyfocusingonthestatusofthetwopartiestotheconflict”60 and started from the assumption, “that parallel conflicts of a different (legal) nature may

the international criminal court and lubanga

33

take place at the same time in a single territory.”61 The Trial Chamber then characterized the armed conflict as non-international, invoking Regulation 55 of the Regulations of the Court.62 The armed groups contending in the DRC were found not to be proxies for conflicts between Uganda, Rwanda, or the DRC because State actors did not in fact exercise “overall control” over non-state actor combatants.63 Since the conflict was found to be internal, not international, the relevant rule to apply was Article 8(2)(e)64 of the Rome Statute (other serious violations of the laws and customs of war not of an international character) and not 8(2)(b).65

2.The public (state actor) and private (non-state actor) split: non-state actors and international humanitarian law

The problem of non-state actors involving themselves directly as agents of politicalviolence,whetherindependentlyorwithstatesponsorship(proxywars and state sponsored terrorists) is an important contemporary issue. Non-state actors do use child soldiers. In fact: “Much illegal recruitment of children is undertakenbynon-Stateactorssuchasarmedoppositiongroups.”66 According to the Lubanga decision,anarmedconflictinvolvingnon-stateactorscanalso be an international armed conflict where the non-state actor acts as a proxy for one state on the territory of another. The non-state actor must be subject to the “overall control” of the sponsoring state to be considered a proxy.67 Whether “overall control” exists is a question of fact, though I would argue a proof of state funding or supplying weapons or ammunition to a controlled group would suffice to meet the standard, and should put the burden of proof on the party pleading that no overall control existed. Where the non-state ac- tor is not acting as a proxy for a state actor and operates only on the territory of one state there is no international armed conflict. Lubanga also held that international armed conflict includes military occupation.68

C. Child auxiliaries in Lubanga

The international rule prohibiting child soldiers specifically prohibits the “active participation” of children. This raises the question of what is “ac- tive” or “direct” participation. “The plausible interpretations of the ‘active participation’ requirement range from a very restrictive reading limiting the participation to exclusively combat-related activities to a broader reading, including any supporting activity or role.”69 The better interpretation is the interpretation which the Lubanga decision took up. The international norm prohibiting child soldiers also prohibits child auxiliaries. Auxiliaries do not primarily engage in direct combat activities but are active participants by supplying, servicing, and supporting soldiers.70

Auxiliaries are not combatants. They are combat support personnel. The ghastlyexamplesarehumanshieldsandhumanlandmineremovers.Theseem- ingly benign versions are camp cooks, transport drivers, and “entertainers” —where “entertainer” is often a euphemism for “camp prostitute” or “forced

34	national lawyers guild review

war bride.” According to Lubanga, and I think rightly, the prohibition of the use of child soldiers also applies to child auxiliaries where the child auxiliary islikelytobetargetedbyenemycombatants.Theprohibitionofchildauxilia- ries is logical because auxiliaries are often targeted and may be forced by the circumstances of war to take up arms in self-defense. Interpreting the norm to prohibitchildauxiliariesisalsojustifiedbythefactthatsuchaninterpretation of “active participation” is consistent with the CRC’s “best interests of the child” standard. Finally, prohibiting child auxiliaries is justified because the combatant/non-combatant distinction is another victim of modern warfare, as any “ethnic cleansing” or mass bombardment shows. Contemporary conflicts usuallysweepupciviliansintothebloodshed,regardlessofthecivilian’sown wishes.Finally,prohibitingchildauxiliariesalsopreventsillusoryclaimsthat childsoldierswerereallyonlyauxiliariesandmakesclearthattheprohibition on child soldiery is absolute, universal, and becoming a part of jus cogens, the non-derogable rules of customary international law.71Albeit, some child- soldiers may themselves be war-criminals,72 which is less likely to be the case among auxiliaries.

IV. The prohibition of child soldiery as jus cogens

The prohibition of child soldiery, like the prohibition of wartime rape and child-sextourism,isbecominganon-derogablejuscogensruleofinternational law. Jus cogens norms are formed by near universal adhesion, and agreement not only that the norm is binding but also that the norm is non-derogable and of mutual, not merely several, concern and thus subject to universal jurisdic- tion. Ordinary customary international laws may be avoided by states that affirmativelyandpersistentlyobjecttotheformationofthecustomab initio.73 However, jus cogens is non-derogable. So, for example, South Africa could notarguethatitsapartheidregimewasapersistentobjector74 to the juscogens prohibitionofstate-sponsoredsegregation(apartheid).75 Jus cogens normsare rules of conduct which are not only of concern to all states individually but also are of concern to the international system as a whole. That is, a violation of a jus cogens norm is an injury to every state. This explains why each jus cogens normadmitsofuniversaljurisdiction.76 Nostatemayviolatejuscogens rules and any state may enforce jus cogens.77

The theoretical basis of jus cogens is a late modern recurrence of natural law.78 Jus cogens literally means compelling right, i.e., the right of good con- science (cogens is etymologically related to cogent, for the cogent thought is compelled to coherence). Certain legal rules are inevitable because they are in themselves good and fair and thus attract adhesion and replication and tend to become universal in space and time.

The naturalistic fallacy is to confuse that which occurs in nature for that which ought to occur in nature. People who criticize all natural law reason- ing as flawed by this fallacy generally have a simplistic view of natural law,

the international criminal court and lubanga

35

one that regards natural law as an emanation of religious law.Amore refined critique invoking the fallacy would attack natural law as self-contradictory epistemic dualism that ignores scientific materialism. However, there are severalschoolsofnaturallaw. Notallschoolsofnaturallawargueforthelaw of nature as “God’s own law.” Some advocates of natural law theory present pre-scientific or outright unscientific ideas that confuse that which appears in nature for that which ought to be done by man. However, when we recognize natural law as the law of reason and nature as teleology these valid criticisms of religious natural law fall away.

Aristotelian teleology regards nature not as a static unchanging incompre- hensible force.ToAristotle, nature is a dynamic process of self-development. Aristotle’s teleology is naturalist in the sense that it describes what happens when everything goes rightly. The nature of the acorn, its teleology, is to be- come a tree. In the best of circumstances a mighty oak springs forth from an acorn. Not all acorns become trees. Likewise, the nature of a boy, that is the boy’steleology,istobecomeastrong,intelligent,wiseandjustman.Obviously not all boys become that, nor do all boys even survive childhood. Aristotle’s naturalist teleology does not suffer from the naturalist fallacy. Moreover, Aristotle’s naturalism does not suffer from epistemic dualism, unlike Plato. Aristotle is monist and materialist. That is the correct theoretical basis of jus cogens as “natural law.”79

The prohibition of war crimes such as the use of child soldiers or of rape andprostitutionasameanstowagegenocideandwarissofundamentaltothe internationalsystemthatitshouldbeseenbyallstatesasaprohibitedpractice to any state. These war crimes are in fact dangerous to the international sys- tem as a system and so are of mutual and not merely several concern. Such a violation anywhere is in fact an injury to every state because the conduct cre- ates unpredictable instability (private and/or terrorist violence). The conduct moreoverisutterlyreprehensibleanduniversallycondemnedbothinnational and international law and is already subject to extraterritorial enforcement under national law. To put it starkly: child soldiers may grow up to become international terrorists. Thus, they are of global concern.

A. Child soldiers as slaves

Others have also argued that child prostitutes80 (“prostitots”) and child sol- diers are forms of slave labor and therefore prohibited by international law as jus cogens.81 The argument seems somewhat forced yet also has some merit. The essence of slavery is a complete lack of autonomy. Forced prostitution is fairly obviously a form of slavery. However, not all child soldiers are in fact conscripts, some are volunteers. Yet, children have limited capacity for autonomy and thus even the “voluntary” child soldier can be seen like the slaveashavingnorealautonomyandisavictimoflaborextraction.Although an interesting theory, the argument that child soldiery is a form of slave labor

36	national lawyers guild review

and thus a jus cogens violation does not appear to have been pursued in the Lubanga decision. It is however a possible path to the determination that recruiting, enlistment or use of child soldiers is a violation of jus cogens.

Conclusion

In conclusion, Lubanga only appears to ignore gender. In fact, by build- ing a more solid and broader foundation for the prohibition of child soldiers to include auxiliaries, Lubanga sets the stage for an extension of jus cogens to prohibit child soldiery, forced prostitution, and wartime rape. Feminist critiques of Lubanga, while understandable, well intended, and directed to desirable goals are somewhat misplaced for failing to see Lubanga as a systematic construction and strengthening of the international rule of law. Rather than a denial of justice for women, Lubanga sets the stage for future

feminist legal victories.

__________________________

NOTES

1.Prosecutor v. Thomas Lubanga Dyilo, Case. No. ICC-01/04-01/06, at 288 (14 Mar. 2012).

2.Id. at 286.

3.The jus cogens norm, like the norm erga omnes, concerns interests of the international legal systemquasystem.BarcelonaTraction,LightandPowerCompany,Limited(Belg.v.Spain), Judgment,1964I.C.J.Rep.1964(July24), available at http://www.worldcourts.com/icj/eng/ decisions/1964.07.24_barcelona_traction.htm.All states severally share not only an interest in enforcement, but are moreover mutually injured in case of any violation of thejus cogens norm. The prohibition of child prostitution and sex tourism are not yet jus cogens norms, although universally condemned and sanctioned by national and international law, because the injury is still (wrongly) seen as to the individual, not to the international system as a whole. See, e.g., Eric Thomas Berkman, Responses To The International Child Sex Tourism

Trade, 19 B.C. Int’l & Comp. L. Rev. 397, 421 (1996).

4.Theanti-imperialistcritiquearguesthattheICCembodiesneo-colonialism.FredericMegret thinks that seeing the ICC as neo-colonialist is somewhat misplaced. Frederic Megret,Cour

PenaleInternationaleEtColonialisme:Au-DelaDesEvidences[TheInternationalCriminal Court and Colonialism: Beyond the Obvious], Soc. Sci. Res. Network at 1 (Feb. 20, 2013) (Fr.), available at SSRN: http://ssrn.com/abstract=2221424..

5.“In its 2010 Report to the United Nations General Assembly, the ICC stated that there has been a noticeable decrease in the use of child soldiers since the ICC brought charges against Thomas Lubanga Dyilo in 2006.” Robert Zuber & Saul Mendlovitz, The Prospects Of Abolishing War: A Proposal For The 21st Century, 21 Transnat’l L. & Contemp. Probs. 705,713(2013).(citing:InternationalCriminalCourtAssemblyofStatesParties[ICC-ASP], Report of the Bureau on the Impact of the Rome Statute System on Victims and Affected Communities, P 35, ICC-ASP/9/25 (Nov. 22, 2010)).

6.“Moreover, the case has had a positive impact on the prevention of the use of child soldiers, andhasraisedawarenessoftheimpactofsuchcrimesonchildren.Forexample,itcontributedtothedemobilizationofthousandsofchildsoldiersinNepal.”KarenL.Corrie,International Criminal Law, 46 Int’l Law. 145, 148 (2012).

7.Practitioners and advocates of international criminal law frequently justify this body of law and its institutions on the basis of the deterrent effect that it has on those who might commit mass atrocities. Nevertheless, detailed studies by external critics in the past 20 years of globalised justice have strongly called into question this deterrence rationale as it lacks support in the historical record. Padraig McAuliffe, Suspended Disbelief? The Curious Endurance of the Deterrence Rationale in International Criminal Law, 10 N.Z.

J. Pub. & Int’l L. 227 (2012).

the international criminal court and lubanga

37

8.Id. at 258:

At the Lubanga trial in 2010, the United Nations Special Envoy on Child Soldiers Radhika Coomaraswamy testified as an amicus curiae that the willingness of the ICC to prosecute cases of child soldier recruitment led armed groups to negotiate 14 action plans for the release of children who might otherwise have been pressed into military action, including 3000 in Nepal. Perhaps more tenuously, it has been suggested that the indictment of members of the Lord’s ResistanceArmy ‘cannot be discounted as one of the possible factors’ motivating its willingness to negotiate with the Ugandan govern- ment from July 2006.

9.Karen L. Corrie, International Criminal Law, 46 Int’l Law. 145, 148 (2012).

10.Jus cogens is “[a] mandatory norm of general international law from which no two or more nations may exempt themselves or release one another.”Black’s Law Dictionary 864 (7th ed. 1999). See also, Melina Milazzo, Military Commissions Act of 2006: A Regressive Step Back from the International Legal Standards of Rape and Sexual Violence, 35Fla. St. U. L.

Rev. 527, 536 (2007-2008) (citing Boleslaw A. Boczek, International Law: A Diction- ary, at xx (2005));Antonio Cassese, International Law, 143 (2005).

11.Benjamin Pomerance, Not Just Child’s Play: Why Recognizing Fundamental Principles of

the UN Convention on the Rights of the Child as Jus Cogens Would Give Needed Power to an Important International Document, 16 Gonz. J. Int’l L. 1 (2013).

12.K’Shaani O. Smith, Prosecutor v. Lubanga: How the International Criminal Court Failed the Women and Girls of the Congo, 54 How. L.J. 467, 476 (2011).

13.“[C]ivil and common law judicial traditions merge in the ICC’s hybrid system of criminal procedure.” Corrie, supra note 9, at 147 (2012).

14.Alicia Mazurek, Prosecutor v. Thomas Lubanga Dyilo: The International Criminal Court as it Brings its First Case to Trial, 86 U. Det. Mercy L. Rev. 535 (2009).

15.Thecasewasnotwithoutdifficulties.Forexample,TrialChamberIstayedtheproceedings for approximately five months after it concluded in June 2008 that the Prosecution had notdisclosedtotheDefenseover200documentswhichcontainedpotentiallyexculpatory information or which were material to the Defense’s preparation, based on an incorrect use of article 54(3)(e) of the Rome Statute. In another example, the Prosecution’s first trial witness initially retracted his claim that he had served as a child soldier in the FPLC and said that an unnamed NGO told him what to say.”

Corrie, supra note 9, at 147-148.

16.Id. at 148.

17.Smith, supra note 12, at 475.

18.Rome Statute of the International Criminal Court art. 54(3)(e).

19.Rome Statute of the International Criminal Court art. 67(2).

20.Alex Whiting, Lead Evidence and Discovery Before the International Criminal Court: The

Lubanga Case, 14 UCLA J. Int’l L. & Foreign Aff. 207 (2009).

21.Dr.CarolineBuisman,DelegatingInvestigations:LessonsToBeLearnedFromTheLubanga Judgment, 11 Nw. U. J. Int’l Hum. Rts. 30 (2013).

22.The security concerns outlined above [regarding investigation and intimidation] are not new to the ICC. Investigators from other international criminal tribunals have had to carry out investigations in difficult and volatile circumstances. This particularly holds true for the ICTY investigators, who had to operate while the war was still ongoing in parts of the former Yugoslavia. The ICTY was also successful in that all its suspects from all warring parties have eventually been surrendered to it. The ICTR was similarly successful in managing to try most indictees (although on many other fronts, the ICTR is not exemplary).

Id. at 147.

23.Id.

24.“The tendency of this layered judiciary to complicate proceedings.” Diane Marie Amann, Prosecutor v. Lubanga. Case No. Icc-01/04-01/06. Judgment, Decision On Sentence, Deci- sion On Reparations, 106Am. J. Int’l L. 809, 816 (2012).

38	national lawyers guild review

25.The trial chamber laid the blame for the shortcomings ofLubanga at the foot of the man to whom it pointedly referred as ‘the former Prosecutor.’That is too easy an evaluation, for the case revealed other sources of strain, among them the ICC’s novel, many-sided litigation model. Most national criminal justice systems invite active participation by the prosecution,defense,andtrialbench.Somealsopermitameasureofvictimparticipation; incontrast,theRomeStatutehasbeeninterpretedtoaffordanactiveroletomultipleteams ofvictims’lawyerswho,inLubanga,disagreedattimesonlitigationstrategy.Addingmore sides to the model were the pretrial judges, who ordered the presentation of evidence of an international armed conflict that prosecutors had argued could not be proved, and an appeals chamber called upon to decide an interlocutory matter.

Id.

26.SusanaSáCouto,VictimParticipationAtTheInternationalCriminalCourtAndTheExtraor- dinary Chambers In The Courts Of Cambodia: A Feminist Project?, 18 Mich. J. Gender & L. 297 (2012).

27.KaiAmbos,ConfidentialInvestigations(Article54(3)(E)ICCStatute)vs.DisclosureObliga- tions—The Lubanga Case and National Law, 12 New Crim. L. Rev. (Fall 2009), available at SSRN: http://ssrn.com/abstract=1540623.

28.KaiAmbos, The First Judgment of the International Criminal Court (Prosecutor v. Luban- ga): A Comprehensive Analysis of the Legal Issues (2012), 12 Int’l. Crim. L. Rev. 115 (2012), available at SSRN: http://ssrn.com/abstract=2030751 or http://dx.doi.org/10.2139/ ssrn.2030751.

29.A recurring question in international criminal procedure is how to ensure that prosecu- tors are held accountable for their errors and misconduct. When International Criminal

Court (ICC) judges encountered the first serious error by the prosecution in Prosecutor v. Lubanga, they opted for an absolutist approach to remedies: the judges stayed the proceedings and ordered the release of the defendant. Although termination of the case was avoided through the intervention of the Appeals Chamber.

Jenia Iontcheva Turner, Policing International Prosecutors, 45 N.Y.U. J. Int’l L. & Pol.

175, 175 (2012).

30.Victor Tsilonis, Thomas Lubanga Dyilo: The Chronicle of a Trial Foretold? 5Intellectum

27-42 (2008), available at SSRN: http://ssrn.com/abstract=1936658.

31.Bruce Zagaris, Tribunal Orders Release Of Lubanga After Suspending Trial For Prosecuto- rial Misconduct, 24 No. 9 Int’l Enforcement L. Rep. 372 (2008).

32.[A]lthough Lubanga was not charged with sexual or gender-based crimes, four legal representatives of victims specifically referred to sexual and gender-based violence suf- fered by girl soldiers during their opening statements. . . . Lubanga was charged with war crimes relating to the enlistment, conscription, and use of children under the age of fifteen in armed conflict. Despite strong advocacy by women’s rights groups and others, the prosecutor did not specifically charge the accused with any sexual or gender-based crimes.Nevertheless,legalrepresentativesoffemalechildsoldiersspokeatlengthduring their opening statements not only about the fact that girl soldiers had been subjected to various forms of sexual and gender-based violence, but also about the broader context and the long-term effects of such violence.

SáCouto, supra note 26, at 333-334.

33.“[T]hese crimes are seen as a ‘detour, a deviation, or the acts of renegade soldiers . . .

peggedtoprivatewrongsand...[thus]notreallythesubjectofinternationalhumanitarian law.’Therefore, despite the enumerated list of sexually-based crimes in the Rome Statute, the prosecutor likely adopted the historical view of the crimes and refused to include them in an indictment.” Smith, supra note 12, at 479.

34.Solange Mouthaan, Victim Participation at the ICC for Victims of Gender-Based Crimes: A Conflict of Interest?, 21 Cardozo J. Int’l & Comp. L. 619, 649 (2013).

35.Smith, supra note 12, at 486.

36.SáCouto, supra note 26 at 333-334.

37.Eric Allen Engle, Humanitarian Intervention and Syria, 18 Barry L. Rev. 1 (2012), avail- able at http://amor.cms.hu-berlin.de/~engleeri/international/18BarryLRev1.htm.

the international criminal court and lubanga

39

38.Eric Engle, U.N. Packing the State’s Reputation? A Response to Professor Brewster’s ‘Un- packingtheState’sReputation’,114Penn Statim 34(2010),available at http://lexnet.co.cc/ international/114 PennStatim34.htm.

39.“ACOMMONWEALTH, or STATE which is but an artificial man, though of greater stature and strength than the natural, for whose protection and defence it was intended.” Thomas

Hobbes, Leviathan, “Introduction,” 1 (1651). “[T]hat mortal god to which we owe, under the immortal God, our peace and defence.” Id. at ch. XVII. “A state should be so consti- tuted as to live for ever. For a commonwealth, there is no natural dissolution, as there is for a man, to whom death not only becomes necessary, but often desirable. And when a state once decays and falls, it is so utterly revolutionized, that if we may compare great things with small, it resembles the final wreck of the universe.” Marcus Tullius Cicero, Treatise on the Commonwealth, (54 B.C.) (trans. Frances Barham, Esq., 1841-42).

40.“Whenseveralvillagesareunitedinasinglecompletecommunity,largeenoughtobenearly

or quite self-sufficing, the state comes into existence, originating in the bare needs of life, and continuing in existence for the sake of a good life,” Aristotle, Politics, Book One, Part II (c. 350 B.C.E.) (trans. Benjamin Jowett, 2000).

41.Hedley Bull, The Anarchical Society, A Study of Order in World Politics, (3d ed.

2002).

42.While the use of children in armed conflict is not necessarily a new concept, it is only relativelyrecentlythatinternationallawhasbeenspecificallydirectedtowardsaddressing it.Since1977,anumberofinternationallegalinstrumentshaveattemptedtosetstandards to prevent the recruitment and use of children in this way.

Steven Freeland, Mere Children or Weapons of War - Child Soldiers and International Law,

LaVerne L. Rev. 19, 29 (2008), available at SSRN: http://ssrn.com/abstract=1306169 or http://dx.doi.org/10.2139/ssrn.1306169.

43.“Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shallrefrainfromrecruitingthemintotheirarmedforces.”ProtocolAdditionaltotheGeneva Conventionsof12August1949andRelatingtotheProtectionofVictimsofNon-International Armed Conflicts, art. 4(2)(c), 1125 UNTS 609 (AP II) (1977).

44.“State Parties to the present Charter shall take all necessary measures to ensure that no child shall take a direct part in hostilities and refrain in particular, from recruiting any child.” African Charter on the Rights and Welfare of the Child art. 22 (1990), available at http:// www.achpr.org/instruments/child/#a22.

45.RomeStatuteoftheInternationalCriminalCourt,U.N.Doc.A/CONF.183/9*,2187U.N.T.S. 90 (1998).

46.“[S]hall 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” and “shall refrain from recruiting any personwhoasnotattainedtheageoffifteenyearsintotheirarmedforces.” OptionalProtocol to the Convention on the Rights of the Child art. 38, May 25, 2000 (on the involvement of children in armed conflict), available at http://www.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?d ocumentId=24CAD49E85523D5941256937002F7220&action=openDocument.

Resolution adopted by the General Assembly (without reference to a Main Committee (A/54/L.84)) 54/263; Optional Protocols to the Convention on the Rights of the Child, G.A. Res. 24 54/263, May 25, 2000 (on the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography), available at http://www. un-documents.net/a54r263.htm.

47.Forexample,ChildSoldiersPreventionAct,22U.S.C.§§2370(c)-(c)(2)(2008);ChildSoldiers AccountabilityAct, 18 U.S.C. § 2442 (2008); 18 U.S.C. § 2442 (2008); and the War Crimes Act, 18 U.S.C. § 2441 (2006)(criminalizing war crimes committed by or against a member of the U.S. armed forces or a U.S. national).

48.Tracey B. C. Begley, The Extraterritorial Obligation to Prevent the Use of Child Soldiers,

27 Am. U. Int’l L. Rev. 613 (2012).

40	national lawyers guild review

49.ChristopherGreenwood,CustomaryStatusofthe1977GenevaProtocols, in Humanitarian

Law of Armed Conflict: Challenges Ahead: 101-2 (Astrid J.M. Delissen & Gerald J. Tanja, eds.,1991).

50.Others also argue that the rights of children should be seen as jus cogens. See, e.g., Ladan

Askari,Girls’RightsUnderInternationalLaw:AnArgumentforEstablishingGenderEqual- ity as a Jus Cogens, 8 S. Cal. Rev. L. & Women’s Stud. 3 (1998).

51.“Child sex tourism is widely recognized as a universal crime.” Joanna Doerfel, Regulating

Unsettled Issues In Latin America Under The Treaty Powers And The Foreign Commerce

Clause, 39 U. Miami Inter-Am. L. Rev. 331, 339 (2008). Thus, e.g., child sex tourism is illegal under U.S. law. 18 U.S.C. A. § 2423(c). However, sex tourism though universally condemned by national and international law does not yet appear to be recognized as a jus cogens norm. Others have suggested that child sex tourism should be seen as a jus cogens violationbecausechildprostitutionisaformofslavery. KyleCutts,AModicumOfRecovery: How Child Sex Tourism Constitutes Slavery Under the Alien Tort Claims Act, 58 Case W. Res. L. Rev. 277 (2007). Unfortunately the Alien Tort Statute’s extraterritorial effect has been significantly constrained. It is now subject to a presumption against extraterritoriality suchthatcasesnowmust“touchandconcerntheterritoryoftheUnitedStateswithsufficientforcetodisplacethepresumptionagainstextraterritorialapplication.”(Kiobel v. Royal Dutch Shell, 569 U.S.___); 113 S.Ct. 1659, 1665, 1666 (2013). While broad based Filartiga type claims are now precluded, see, Filartiga v. Pena-Irala, 630 F.2d 876 (1980), it remains to be seen how human rights actions under international law will be treated in U.S. courts. See, e.g., Gregory H. Fox & Yunjoo Goze, International Human Rights Litigation After Kiobel,

92 Mich. B.J. 44 (Nov. 2013).

52.Adil Ahmad Haque, Protecting And Respecting Civilians: Correcting The Substantive And

Structural Defects Of The Rome Statute, 14 New Crim. L. Rev. 519 (2011).

53.Civilians are protected during armed conflict by two bodies of law that differ from one another both in their institutional function and in their conceptual structure. International humanitarian law, particularly as embodied inAdditional Protocol I to the 1949 Geneva Conventions, is designed to guide the prospective conduct of military commanders and soldiers on the battlefield. Armed forces are first to distinguish between civilians and enemy combatants; then to direct attacks only at enemy combatants and not at civilians; then to plan and carry out attacks in a manner that avoids or at least minimizes harm to civilians; and finally to refrain from attacks that would cause disproportionate harm to civilians in relation to the military advantage the attacks would achieve. By contrast, in- ternationalcriminallaw,particularlyasembodiedintheRomeStatuteoftheInternational CriminalCourt,isdesignedtoguidetheretrospectiveevaluationofpastoffensesbycourts. Courts are first to establish the commission of a criminal offense by the defendant; then to consider any justifications, excuses, or other defenses the defendant may assert with respect to that offense; then to acquit or convict the defendant; and finally to impose an appropriate punishment.

Haque, supra note 52 at 520.

54. For example, in the Lubanga decision,

Although it ruled that conscription typically carries an element of compulsion while enlistment is voluntary, it reasoned that children under fifteen were not entitled to choose to fight, so that enrollment of a child under fifteen in an armed force was illegal ‘with or without compulsion,’ (id., para. 618). As for use, a majority of the chamber construed the phrase ‘to participate actively in hostilities’ to include a child’s support to combatants, if it ‘exposed him or her to real danger as a potential target,’ (id., para. 628). The construction expanded the proscription to use beyond ‘the immediate scene of the hostilities’, (id.), yet appeared to exclude children victimized not by the enemy but, rather, by the militia that had recruited them.

Amann, supra note 24 at 810-812 (2012).

55.Rome Statute of the International Criminal Court, art. 8(2)(b) (“Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:”), available at http:// untreaty.un.org/cod/icc/statute/romefra.htm.

the international criminal court and lubanga

41

56.Thomas Liefländer, The Lubanga Judgment of the ICC: More than Just the First Step?,

1 Cambridge J. Int’l & Comp. L. 191, 193 (2012), available at SSRN: http://ssrn.com/ abstract=2183881.

57.ICC Statute of Rome, Article 8(2)(b) provides:

Otherseriousviolationsofthelawsandcustomsapplicableininternationalarmedconflict, within the established framework of international law, namely, any of the following acts:

(xxvi) Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.

Rome Statute of the International Criminal Court, art. 8(2)(b) (emphasis added).

58.Ambos, The First Judgment of the International Criminal Court, supra note 28 at 129.

59.Liefländer, supra note 56 at 199.

60.Id.

61.Ambos, The First Judgment of the International Criminal Court, supra note 28 at 129.

62.ICC, Regulations of the Court, adopted 26 May 2004, as amended 14 June and 14 No- vember 2007, (amendments entering into force 18 December 2007) (“the Chamber may change the legal characterisation of facts to accord with the crimes under articles 6, 7 or 8, or to accord with the form of participation of the accused under articles 25 and 28, without exceeding the facts and circumstances described in the charges and any amendments to the charges.”),available at http://www.icc-cpi.int/NR/rdonlyres/DF5E9E76-F99C-410A-85F4- 01C4A2CE300C/0/ICCBD010207ENG.pdf.

63.Ambos,TheFirstJudgmentoftheInternationalCriminalCourt,supranote28.TheLubanga decisionappliesthemorerelaxed“overallcontroltest”firstenunciatedinProsecutor v. Tadic, ICTY, IT-94-1-A., Lubanga at 561. However, whether the overall control test or the more rigid effective control test (requiring closer day to day control over proxy forces) should apply remains controversial. See footnote 65, infra.

64.Rome Statute of the International Criminal Court provides:

(e)Other serious violations of the laws and customs applicable in armed conflicts not of aninternationalcharacter,withintheestablishedframeworkofinternationallaw,namely, any of the following acts:

(vii) Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities;

Rome Statute of the International Criminal Court art. 8(2)(e)(vii).

65.[A]s a consequence of the Chamber’s move to a non-international armed conflict, the war crime of Article 8(2)(b)(xxvi) is no longer applicable and thus the tricky issue whether paramilitary-like armed groups like the UPC can be equated to ‘national armed forces’, unconvincingly affirmed by the PTC,124 is no longer relevant.125 Indeed, the applicable war crime for the non-international armed conflict,Article 8(2)(e)(vii), more broadlycoverstherecruitment(‘conscriptingorenlisting’)ofchildrenunderfifteen‘into armed forces or groups’, i.e., it clearly extends to any armed group within the meaning of international humanitarian law.

Ambos, The First Judgment of the International Criminal Court, supra note 28 at 132-133.

66.MatthewHappold,ChildRecruitmentasaCrimeundertheRomeStatuteoftheInternational

CriminalCourt(February5,2010),in The Legal Regime of the International Criminal Court: Essays In Memory Of Igor Blischenko 2 (José Doria, et al, eds., 2010),available

at SSRN: http://ssrn.com/abstract=979916.

67.WhileLubanga,followingtheTadic decisionoutoftheICTYappliedtheoverallcontroltest fordeterminingliabilityforhumanrightsviolationsperpetratedbyproxies,see note61supra, there remains a doctrinal question on this point.The International Court of Justice following its earlier decision in The United States v. Nicaragua, ruled in Bosnia and Herzegovina v. Serbia and Montenegro, 46, no 2 I.L.M. 185 (Feb. 26, 2007) that the proper test was the “effective control” test not the more malleable “overall control” test of Prosecutor v. Tadic, Judgment,CaseNo.IT-94-1-A.,38ILM1518(1999).Atleastastostatecontrolforpurposes of attributing direct responsibility for genocide the test then is “effective control” requiring

42	national lawyers guild review

direct and continuous control over the otherwise separate, or perhaps non-organic, military units involved in the violation of the laws of war or genocide or crimes against humanity. The ICJ court distinguished Tadic, which applied an “overall control” test for determining when a war was international for purposes of applying the Geneva Conventions.The overall control test allowed for liability for use of proxy forces committing violations of IHL even wherethesponsornationlackedeffectivecontroloverthesituation.Logicallytherecouldbe a different test in this different situation where state responsibility is not directly concerned. However,someofthecommentatorsdonotseeitthatway.See, e.g.,MarcoSassoli,&Laura M. Olson, 94 A.J.I.L. 571 (2000); International Decision: Prosecutor v. Tadic (Judgment)

ICTY Case No. IT-94-1-A., 38 ILM 1518 (1999). They argue that the overall control test has been effectively superseded. International CriminalTribunal for the FormerYugoslavia, Appeals Chamber, July 15, 1999.

In any event the ICJ reverted to the Nicaragua test and applying that test found that it had not been proved that the authorities of the FRY had issued instructions to the army of the Republicka Srpska to commit the massacres and that it was not an organ of the FRY. The FRYdid not exercise the required effective control and this case ends the doctrinal debate on the test of attribution under Article 8 of the ILC Articles on State Responsibility. Nonethe- less, Lubanga provides strong support for application of the overall control test outside of the state responsibility area and this writer argues that at least in the Tadic war crimes area the ICC was correct to adopt the overall control test. This more relaxed test will encourage adherence to IHL and ICL and will make proxy war violations of IHRL more difficult.

68.Liefländer, supra note 56 at 194.

69.Ambos, The First Judgment of the International Criminal Court, supra note 28 at 137.

70.[T]he Chamber distinguished the notion of active participation in hostilities from the more common international humanitarian law notion of direct participation, a move that has already given rise to criticism. The Chamber stated that: Those who participate actively in hostilities include a wide range of individuals, from those on the front line (who participate directly) through to the boys or girls who are involved in a myriad of roles that support the combatants. All of these activities, which cover either direct or indirect participation,haveanunderlyingcommonfeature:thechildconcernedis,atthe very least, a potential target. The decisive factor, therefore, in deciding if an ’indirect’ role is to be treated as active participation in hostilities is whether the support provided by the child to the combatants exposed him or her to real danger as a potential target. In the judgment of the Chamber these combined factors—the child’s support and this level of consequential risk—mean that although absent from the immediate scene of the hostilities, the individual was nonetheless actively involved in them.

Liefländer, supra note 56 at 201.

71.“[T]here exist in the general positive international law of today certain fundamental rules of international public order contrary to which States may not validly contract.” Rep. of the Int’l Comm’n, ¶ 18, U.N. Doc. A/5601, 15th Sess. (Nov. 6, 1963); UN GAOR, 18th Sess. (1963).

72.Megan Nobert, Children At War: The Criminal Responsibility of Child Soldiers, 3 No. 1

Pace Int’l L. Rev. Online Companion 1 (2011).

73.See, e.g., Kane v. Winn, 319 F. Supp. 2d 162, 202 n.62 (D.Mass. 2004) (citing Ted L. Stein,

The Approach of a Different Drummer: The Principle of the Persistent Objector in Interna- tional Law, 26 Harv. Int’l L.J. 457 (1985)). Fisheries Case (U.K. v. Nor.), 1951 I.C.J. 116, 131 (Dec. 18).

74.On persistent objectors generally, see, e.g., Lynn Loschin, The Persistent Objector and Customary Human Rights Law:AProposedAnalytical Framework 2 U.C. Davis J. Int’l L. & Pol’y 148 (1996).

75.Louis Henkin, 216 Recueil Des Cours, 1989-IV, 60 (Académie de droit international de La Haye, 1989) (Fr.).

76.Criminal violations of jus cogens principles (genocide, grave violations of the Geneva Conventions,andCrimesagainstHumanity)aresubjecttopermissiveuniversaljurisdiction.

the international criminal court and lubanga

43

Under one construal of this principle a willing nation may not onlyprosecute such violations of international criminal it can expect that a second nation, holding an alleged violator, must either prosecute or extradite to the nation willing to undertake such prosecution. See, e.g.,

Ronald C. Slye & Beth Van Schaack, Essentials of International Criminal Law

54-55, 72-78 (2009). There is, however, contrary authority that would acknowledge the per- missivejurisdictiontoprosecutebutdeniesthatanationholdinganallegedcriminalviolator of jus cogens principles must necessarily, in the event that it refused to prosecute, extradite to a nation willing to so prosecute. Under this view a nation may prosecute the genocidaire, war criminal or perpetrator of crimes against humanity, but it is under no obligation to do so and may refuse to extradite to a nation willing to prosecute. For example, Spain sought to extradite Pinochet Ugarte from the UK for prosecution under the principles of universal jurisdiction. Spain thus accepted the notion that it could seek Pinochet’s extradition for prosecution in Spain for the violation of jus cogens human rights norms. The first round before the House of Lords accepted that proposition and would have extradited Pinochet for a host of violations of the ConventionAgainstTorture.R. v. Bow Street Metropolitan Station [House of Lords] 1AC 61, 25 Nov. 1998. The second Pinochet appeal before the House of

Lords, id. Stipendiary Mag., ex parte Pinochet Ugarte (No. 3) [1999] 1 A.C. 147, refused to accept the prior holding by the earlier panel and ruled that the jus cogens norm against torture could only be enforced for extradition purposes not from the undoubted emergence of the norm but only from the date of ratification by the UK. Specifically that court held:

Since torture outside the United Kingdom was not a crime under UK law until [the date of ratification of CAT] the principle of double criminality which requires an Act to be a crime under both the law of Spain and of the United Kingdom cannot be satisfied in relation to conduct before date[because] the principle of double criminality requires the conduct to be criminal under United Kingdom law at the date it was committed.

Id. Thus, the House of Lords rejected extradition under the principal of universal jurisdic- tion based solely upon the principle of jus cogens. The UK required rather that extradition could occur only after both the UK and Chile had ratified CAT thus satisfying the principle of double criminality by making torture a crime under UK law wherever in the world that it occurred. This narrow interpretation of universal jurisdiction notwithstanding, it appears that permissive universal jurisdiction for violation of just cogens principles is increasingly comingtorequirethatanationprosecutesuchcriminalsorextraditethemtoawillingnation.

77.On the definition of jus cogens and its relation to erga omnes norms see, e.g., M. Cherif Bassiouni, International Crimes: “Jus Cogens” and “Obligatio Erga Omnes,” 59 Law & Contemporary Problems 63 (1996), available at http://www.jstor.org/stable/1192190.

78.MaryEllenO’Connell,JusCogens:InternationalLaw’sHigherEthicalNorms,in The Role of Ethics in International Law,(DonaldEarlChildress,III,ed.,2012);NotreDameLegal Studies Paper No. 11-19 (April 19, 2011), available at http://ssrn.com/abstract=1815155.

79.OnAristotle’stheoryoflawandjusticesee, e.g.,EricAllenEngle,Aristotle,Law,andJustice: The Tragic Hero, 35 N. Ky. L. Rev. 1 (2008).

80.Eric Thomas Berkman, Responses To The International Child Sex Tourism Trade, 19 B.C. Int’l & Comp. L. Rev. 397, 421 (1996) (“Sexual exploitation of children is not classified among these crimes of a ‘universal concern,’ but perhaps it might be considered a form of slave trade, which is covered by the universality principle.”)

81.SusanTiefenbrun,ChildSoldiers,SlaveryandtheTraffickingofChildren,31Fordham Int’l

L. J. 415, 457-458 (2008).