Prosecutor V Thomas Lubanga Dyilo

Group 6
Salma, Santos, Serna, Valencia,
Velarde,Yap

Prosecutor V Thomas Lubanga Dyilo

PositionLeader of the Union des Patriotes

Congolais (UPC) militia

ChargesWar crimes of enlisting and
conscripting of children under the age of 15
years and using them to participate
actively in hostilities
StatusSentenced to 12 years'
imprisonment on May 23, 2014

Prosecutor V Thomas Lubanga Dyilo

In March 2004, the Congolese government

authorised theInternational Criminal

Court(ICC) to investigate and prosecute
"crimes within the jurisdiction of the Court
allegedly committed anywhere in the territory
of the DRC since the entry into force of
theRome Statute, on 1 July 2002.
On 17 March 2006, Lubanga became the first
person ever arrested under an ICC arrest
warrant, when the Congolese authorities
arrested him and transferred him into ICC
custody.

Prosecutor V Thomas Lubanga Dyilo

On 10 February 2006, a Pre-Trial Chamber

of the ICC found that there were reasonable

grounds to believe that Lubanga bore
individualcriminal responsibilityfor thewar
crimeof "conscripting and enlisting
children under the age of fifteen years
and using them to participate actively
in hostilities, and issued a sealed
warrant for his arrest

Prosecutor V Thomas Lubanga Dyilo

On 14 March 2012 Lubanga was found

guilty of abducting boys and girls under the

age of 15 and forcing them to fight in a war
in the Democratic Republic of Congo in
2002 and 2003. He faced a maximum
sentence of 30 years when sentenced in
July of 2012.

Question # 6
1. Is there a contradiction between the

notion of direct participation in

hostilities, allowing targeting of persons
directly involved in combat, and the
purposes of the special protection granted
to children by IHL? Should children be
excluded from the notion of direct
participation of hostilities?
2. Would it be realistic to require from the
parties to a conflict not to target children
when they are directly engaged in
combat?

General Rule:
Customary IHL by the ICRC
Rule 137. Participation of Child Soldiers in Hostilities
Rule 137. Children must not be allowed to take
part in hostilities.

In the framework of the war crime of using children to

participate actively in hostilities contained in the

Statute of the International Criminal Court, the words
using and participate have been adopted in order
to:
cover both direct participation in combat and also active
participation in military activities linked to combat such
as scouting, spying, sabotage and the use of children as
decoys, couriers or at military checkpoints.

General Rule:
Customary IHL by the ICRC
Rule 137. Participation of Child Soldiers in Hostilities
Rule 137. Children must not be allowed to take
part in hostilities.

It would not cover activities clearly unrelated to

the hostilities such as food deliveries to an

airbase or the use of domestic staff in an
officers married accommodation. However, use
of children in a direct support function such as
acting as bearers to take supplies to the front
line, or activities at the front line itself, would be
included within the terminology.

General Rule:
Customary IHL by the ICRC

Rule 137. Participation of Child Soldiers in

Hostilities
Rule 137. Children must not be allowed to
take part in hostilities.
The Act on Child Protection of the Philippines

provides that children shall not take part in the

fighting, or be used as guides, couriers or spies.
Upon ratification of the Convention on the Rights
of the Child, the Netherlands stated that States
should not be allowed to involve children directly
or indirectly in hostilities.

General Rule: ICRC, Interpretive Guidance on the Notion

of Direct Participation in Hostilities under IHL:
International Review of the Red Cross (2008), pages 995

996:
1. the act must be likely to adversely affect the military
operations or military capacity of a party to an armed
conflict or, alternatively, to inflict death, injury, or
destruction on persons or objects protected against direct
attack (threshold of harm);
2. there must be a direct causal link between the act and
the harm likely to result either from that act, or from a
coordinated military operation of which that act constitutes
an integral part (direct causation);
3. the act must be specifically designed to directly cause the
required threshold of harm in support of a party to the
conflict and to the detriment of another (belligerent nexus);

General Rule: Rome Statute Vs. IHL

An overly narrow understanding of direct

under the Rome Statute would mean that it

is a war crime to attack any civilian
(including a child) not engaged in front-line
combat, including those who are engaged
in scouting, sabotage and guarding military
objectives.

General Rule: Rome Statute Vs. IHL

Under IHL the position is different, as

outlined above, and those people (including

children) who meet the criteria for direct
participation may be attacked for the
duration of that participation. In all likelihood,
this will include those civilians engaged the
activities discussed above. The result is that
targeting a civilian engaged in scouting,
sabotage or guarding military objectives
(among other things) would be illegal under
the Rome Statute but permitted under IHL.

General Rule: Rome Statute Vs. IHL

This creates uncertainty as to which regime

might govern the actions of parties to a

conflict: and the greater this level of
uncertainty, the greater the potential for
impunity.

1.

Is there a contradiction between the notion of direct

participation in hostilities, allowing targeting of persons
directly involved in combat, and the purposes of the special
protection granted to children by IHL?

No. According to Frdric Mgret, it could

be helpful to child soldiers as either noncombating members of the arm forces (akin
to medical or religious military personnel,
not withstanding the fact that they may
potentially engage in hostilities), or as noncombatants without qualification
(notwithstanding the fact that they are
actually members of the armed forces who
would normally be targetable as such),
subject to the exception that they may be
treated as combatant if and only to the
extent that they participate in hostilities, in

1.

Is there a contradiction between the notion of direct

participation in hostilities, allowing targeting of persons
directly involved in combat, and the purposes of the special
protection granted to children by IHL?

direct participation under IHL, as set out in the

ICRCs Interpretive Guidance, and in the Lubanga

Case.Additional Protocol I, art. 51(3) and additional
protocol II art 13(3).
The ICC has adopted a very narrow understanding of
the concept (referring only to front line combat)
whereas, the ICRCs Interpretive Guidance sets out a
slightly broader definition capable of incorporating
many of the examples given by the Court of active
participation such as scouting, sabotage, and
guarding military objectives.
Thus, children are not excluded from the notion

of direct participation of hostilities.

587. The defence suggests that a footnote to the draft

Statute of the Court provides a wholly insufficient

basis for extending the concept of actively
participating to cover all activities other than fighting
with an indirect link to the hostilities.1746 By
reference to the principle of legality, the defence
argues that the decisions of the SCSL, delivered after
the relevant events, should not be used in support of
a broad interpretation and it suggests that at the time
of the events which are the subject of the present
charges, international criminal law only addressed the
use of children to participate in military operations
within fighting units.

Sources:
Nicole Urban. (2012). Direct

and Active Participation in Hostilities: The Unintended Consequences of t

he ICCs decision in
Lubanga. http
://www.ejiltalk.org/direct-and-active-participation-in-hostilities-the-un
intended-consequences-of-the-iccs-decision-in-lubanga
/
Frdric
Mgret . Targeting
Child Soldiers. file:///C:/
Users/USER/Downloads/SSRN-id2223619.pdf
HiltonJoyoAguja. The ChildSoldierInInternationalHumanitarian Law:
FocusOnTheMoroIslamic LiberationFront InTheSouthernPhilippines.
http://www.victoria.ac.nz/law/nzacl/PDFS/Vol_15_2009/06%20Aguja.pdf
THE PROSECUTOR v. THOMAS LUBANGA DYILO
Case: Thomas Lubanga Dyilo. American Non-Governmental
Organizations Coalition for the International Criminal Court http://
www.amicc.org/icc/lubanga
QUESTIONS & ANSWERS: DECONSTRUCTING LUBANGA, THE ICCS FIRST
CASE . http://www.amicc.org/docs/Deconstructing_Lubanga_QA.pdf

Sources:
Rule 137. Participation of Child Soldiers in

Hostilities. http://
www.icrc.org/customary-ihl/eng/docs/v1_ch
a_chapter39_rule137
http://
www.icrc.org/customary-ihl/eng/docs/v1_ch
a_chapter39_rule137
International Criminal Court (10 February
2006).Warrant of ArrestPDF. Retrieved 7
January 2009.
Trial Watch (2008).Thomas Lubanga Dyilo.
Retrieved 7 January 2009.