Answering the question of whether international law prohibits sexual violence by armed groups against child soldiers in their own ranks should be straightforward: it is prohibited. However, as seen in recent cases before the International Criminal Court (ICC), this is not necessarily the case. The present article critically discusses two approaches suggested in ICC jurisprudence, namely prosecuting sexual violence against children as constitutive of the war crime of ‘using [children] to participate actively in hostilities’ (Article 8(2)(e)(vii) of the ICC Statute), or directly as the war crime of ‘committing rape [or] sexual slavery’ (Article 8(2)(e)(vi) of the ICC Statute). First, it is shown that prosecuting sexual violence under the crime of using children to participate actively in hostilities is unconvincing. Abusing children for sexual purposes does not fall under the scope of active participation in hostilities. If it did, this could have the unintended consequence of depriving children of their civilian status and protection under other provisions of the ICC Statute and international humanitarian law (IHL). Second, it is argued that in the Ntaganda case the Pre-Trial Chamber (PTC) circumvented the question of whether and to what extent children may generally lose their civilian status and protection under IHL if they become member of a party’s armed forces. If children join armed groups or armed forces, the questions arise whether IHL addresses intra-party violence, and under what conditions such violence can be prosecuted as a war crime in non-international armed conflicts.
Addressing sexual violence against children 1 during armed conflict figures high on the international agenda. One avenue in the endeavour to end the ‘appalling levels of brutality of rape and other forms of sexual violence committed against children’ 2 has been the legal one: prohibiting certain conduct internationally and ensuring accountability for perpetrators. It is uncontroversial that sexual violence is prohibited under international humanitarian and human rights law (IHL and IHRL), including against children. 3 Such acts can constitute international crimes, including a war crime in both international and non-international armed conflicts. 4 The latter is the case if such violence is committed in the context of, and is associated with, an armed conflict and the victim qualifies as a civilian not taking direct part in hostilities or as a person who is hors de combat . Against this background, it can rightly be concluded that in most cases ‘sexual violence is absolutely and adequately prohibited under international law’. 5 One issue that tends to be overlooked, however, is sexual violence committed by armed forces or groups 6 against their own members who are children. As will be shown in this article, legal controversy persists on whether such conduct is prohibited under international humanitarian law and may constitute a war crime.
In the young jurisprudential history of the ICC, this issue has been addressed in two different manners. The first approach has been advanced by Judge Odio Benito in her dissenting opinion to the Lubanga case. As the accused was only charged with the war crime of ‘conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities’ under Article 8(2)(e)(vii) ICC Statute, Judge Benito argued that sexual violence committed by soldiers against children forming part of their own armed group should be included in the crime of using children to participate actively in hostilities. 7 In contrast, in Ntaganda the Prosecutor alleges that the fact that armed groups’ ‘commanders and soldiers raped and sexually enslaved their soldiers without regard to age, including child soldiers under the age of 15’ 8 consitutes the war crime of ‘committing rape [or] sexual slavery’ under Article 8(2)(e)(vi) ICC Statute. While this appears prima facie to be the more direct and logical approach, it is not uncontroversial either. Nonetheless, Pre-Trial Chamber II (PTC II) confirmed the charges. 9
The present article briefly recalls the facts of the two cases at stake as well as the legal reasoning behind the two different approaches suggested in ICC jurisprudence on how to address sexual violence committed against children by their own armed group. Subsequently, it critically assesses both approaches. With regard to the first approach, it is shown that prosecuting sexual violence under the war crime of using children to participate actively in hostilities is unconvincing. Abusing children for sexual purposes does not fall under the scope of active participation in hostilities. If it did, this could have the unintended consequence of depriving children of their civilian status and protection under other provisions of the ICC Statute and IHL. With regard to the second one, it is argued that in the Ntaganda case the PTC circumvented the question of whether and to what extent children may generally lose their civilian status and protection under IHL if they become member of a party’s armed forces. If children join armed groups or armed forces, the questions arise whether IHL addresses intra-party violence, and under what conditions such violence can be prosecuted as a war crime in non-international armed conflicts.
2. The Two Approaches Suggested in ICC Jurisprudence
A. The Lubanga Case
In the Lubanga case, the ICC adjudicated crimes committed during a non-international armed conflict between early September 2002 and 13 August 2003 in the Ituri district in north-eastern Democratic Republic of the Congo (DRC) between the Union des Patriotes Congolais (UPC) and other armed groups. 10 During the conflict, all armed groups — including the military wing of the UPC, the Forces Patriotiques pour la Liberation du Congo (FPLC) — allegedly committed various types of atrocities. 11 The ICC Prosecutor, however, only charged Lubanga for the crime of ‘conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities’ under Article 8(2)(e)(vii) ICC Statute. 12 At one point in the proceedings, the Prosecutor also presented evidence showing that ‘girl soldiers were the daily victims of rape by the commanders’. 13 Given the Prosecutor’s decision not to include the factual allegations of sexual violence against Lubanga, the Trial Chamber did not address the question of whether sexual violence may be included in the scope of Article 8(2)(e)(vii) ICC Statute or could be otherwise prosecuted under a different charge. 14
For the purpose of this article, it is worth looking at the Trial Chamber’s interpretation of what constitutes ‘using [children] to participate actively in hostilities’ in Article 8(2)(e)(vii) ICC Statute. In the Trial Chamber’s view,
In light of the above, the notion of participating actively in hostilities under Article 8(2)(e)(vii) ICC Statute would comprise at least two categories of participation: direct participation in hostilities defined as participation ‘on the front line’, and indirect participation in hostilities which may comprise ‘a myriad of roles that support the combatants’. The decisive factor to determine whether a certain conduct amounts to an 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. The Trial Chamber did not specify whether active participation in hostilites could include the use of child soldiers as objects of sexual violence by their own troops. 16
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, have an underlying common feature: the child concerned is, at the 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. … Given the different types of roles that may be performed by children used by armed groups, the Chamber’s determination of whether a particular activity constitutes “active participation” can only be made on a case-by-case basis. 15
In her dissenting opinion, Judge Odio Benito argued that sexual violence committed by an armed group against children who were part of the group should be firmly included in the crime of ‘use to actively participate in hostilities’. 17 In this respect, she emphasized that the prohibition of conscripting, enlisting, or using children by armed groups was not only established to protect these children from being a potential target to the enemy but also to protect them from acts of violence committed by their own groups. 18 For Judge Odio Benito, ‘[s]exual violence is an intrinsic element of the criminal conduct of “use to participate actively in the hostilities”’, and ‘girls who are used as sex slaves or “wives” of commanders or other members of the armed group provide essential support to the armed groups’. 19 In her view, not recognizing it under the war crime of using children to participate actively in hostilities would be discriminatory because sexual violence — most frequently committed against girls — ‘shows a clear gender differential impact from being a bodyguard or porter which is mainly a task given to young boys’. 20 Seemingly as a hint for future cases, Judge Odio Benito clarified that sexual violence can also constitute a distinct crime under the ICC Statute if properly charged by the Prosecutor. 21
B. The Ntaganda Case
In the Ntaganda case the Prosecutor pursued a more direct avenue and charged the accused with rape and sexual slavery under Article 8(2)(e)(vi) ICC Statute. 22 The background of Ntaganda is similar to that of Lubanga : while Lubanga was the head of the FPLC during the conflict in Ituri district, DRC, Ntaganda was allegedly the group’s deputy chief of staff in charge of operations. 23 Looking at the same patterns of violence against children within the UPC/FPLC, the Prosecutor alleged that, within the UPC/FPLC armed group, commanders exploited female child soldiers for domestic work, cooking, and for sex. 24 She explained that ‘[t]hese child soldiers were raped routinely when they were not participating in hostilities, such as during military training and after battles had taken place’, 25 including as a form of punishment. In support of her conclusion that the factual allegations constitute war crimes under the ICC Statute, the Prosecutor argued that these acts violate fundamental guarantees granted under IHL to ‘persons affected by non-international armed conflict’ 26 as well as the special protection granted to children. In particular, the Prosecutor emphasized that, in her view, children enjoy special protection under Article 4(3)(d) of the Protocol Additional to the Geneva Conventions of 1949 and relating to the Protection of Victims of Non-International Armed Conflicts (APII) as well as customary IHL even when they have participated actively in hostilities and are not captured by the adversary. 27 Rebutting the argument that IHL would only protect members of the adversary and not provide intra-party protection, the Prosecutor emphasized that ‘the prohibition on conscripting or enlisting child soldiers or allowing children to directly participate in hostilities’ constitutes a clear example of a war crime that ‘can only be perpetrated by members of a military force against victims which are from the same military force’. 28
Substantially, 29 the Defence opposed the charges of rape and sexual slavery on two main points: first, the Defence argued that the ICC Statute does not criminalize acts committed by armed groups against their own members because ‘there is no doubt that international law of armed conflicts does not aim to protect persons taking part in hostilities against crimes committed by persons taking part in hostilities for the same party’. 30 Second, the Defence stressed that Article 4 APII only applies to persons who do not take part or who have ceased to take part in hostilities and that, if children participate in hostilities, the special protection provided to them under Article 4(3)(d) APII only applies if they ‘are captured’. 31
In the confirmation of charges decision, PTC II found that the central issue to be assessed was whether children were taking direct/active part in hostilities at the time they were victims of acts of rape and/or sexual slavery by other members of their own group. If this was not the case, PTC II argued that these children would fall under the protective scope of common Article 3 Geneva Conventions of 1949 and Article 4 APII. 32 In light of the explicit prohibition of child recruitment, PTC II held that
PTC II further held that children ‘lose the protection afforded by IHL only during their direct/active participation in hostilities’ and argued that:
the mere membership of children under the age of 15 years in an armed group cannot be considered as determinative proof of direct/active participation in hostilities, considering that their presence in the armed group is specifically proscribed under international law in the first place. 33
Accordingly, PTC II found that ‘UPC/FPLC child soldiers under the age of 15 years continue to enjoy protection under IHL from acts of rape and sexual slavery, as reflected in Article 8(2)(e)(vi) of the Statute’. 35
those subject to rape and/or sexual enslavement cannot be considered to have taken active part in hostilities during the specific time when they were subject to acts of sexual nature, including rape, as defined in the relevant Elements of Crimes. The sexual character of these crimes, which involve elements of force/coercion or the exercise of rights of ownership, logically preclude active participation in hostilities at the same time. 34
3. The Two Approaches — An Unholy Interplay?
This section critically examines the two suggested approaches. At the outset, two points are made with regard to the suggestion of prosecuting sexual violence under the crime of using children to participate actively in hostilites: on the one hand, it is shown that the ICC is right in finding that participating actively in hostilities under Article 8(2)(e)(vii) ICC Statute can be interpreted as being broader than the IHL notion of ‘direct participation in hostilities’ under IHL. On the other hand, it is submitted that even a broad interpretation of the notion cannot transform being sexually abused into active participation in hostilities. This section then examines the more direct approach suggested in the Ntaganda decision, namely prosecuting rape and sexual slavery against child soldiers as a war crime under Article 8(2)(e)(vi) ICC Statute. This approach raises at least three issues: first, the status of child soldiers under IHL and their protection when becoming member of a party’s armed force or group; second, the question of whether IHL provides protection against intra-party violence; and third, under what conditions such protection can be enjoyed.
A. Being Subjected to Sexual Violence as an Active Participation in Hostilities?
The Trial Chambers’ interpretation of the notion of participating actively in hostilities under Article 8(2)(e)(vii) ICC Statute as encompassing the direct and indirect participation in hostilities has triggered important debate among scholars. 36 The main point of criticism has been that a broad interpretation of ‘active participation’ under Article 8(2)(e)(vii) ICC Statute could narrow the protection of civilians under other articles of the ICC Statute and create important discrepancies between international criminal law and IHL. 37 The argument goes as follows: Under IHL, civilians enjoy protection from attack ‘unless and for such time as they take a direct part in hostilities’. 38 In other words, fundamental protections apply to persons ‘taking no active part in the hostilities’. 39 In this context, the notions of ‘active participation’ and ‘direct participation’ in hostilities are understood as referring to the same quality of participation in hostilities, and are summarized under the concept of ‘direct participating in hostilities’ (DPH). 40 The ICC Statute imports this language to some extent. War crimes under Article 8(2)(c) can only be committed against ‘persons taking no active part in the hostilities’, and Article 8(2)(e)(i) criminalizes ‘[i]ntentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities’. If the notion of active participation under Article 8(2)(e)(vii) ICC Statute was interpreted broadly, this could have two unintended effects: first, if the same meaning was given to the notion ‘active participation’ under Article 8(2)(c), this would narrow the scope of persons against whom war crimes under the latter provisions could be committed. Second, if ICL followed the IHL assumption that ‘active’ and ‘direct’ participation in hostilities refer to the same conduct, a broad interpretation of ‘active’ participation under Article 8(2)(e)(vii) could also narrow the protective scope of Article 8(2)(e)(i). Concretely, if victims of rape were considered as actively participating in hostilities under Article 8(2)(e)(vii), and the notions of ‘active’ and ‘direct’ participation in hostilities had the same meaning, these children would no longer be protected under Article 8(2)(e)(i). In addition, if it is assumed that active and direct participation in hostilities should have the same meanings under ICL and IHL, a broad interpretation of what constitutes active participation in hostilities under ICL would also have unintended consequences under IHL.
Looking concretely at the cases examined here, broadening the notion of participating actively or directly in hostilities in order to expand the scope of Article 8(2)(e)(vii) ICC Statute could have particular consequences for prosecuting persons committing sexual violence against child soldiers within their own forces. If being victim of sexual violence by one’s own forces is considered as participating actively in hostilities as suggested by Judge Odio Benito, it would be difficult to prosecute such acts under Article 8(2)(e)(vi). As the chapeau of Article 8(2)(e) sets out, crimes under this article are ‘serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law’. Under the established framework of IHL applicable to a non-international armed conflict, sexual violence is prohibited under common Article 3 Geneva Conventions of 1949 and Article 4(2)(e) APII. 41 As set out above, violations of common Article 3 can only be committed against ‘persons taking no active part in the hostilities’. 42 Hence, the Special Court for Sierra Leone cautioned aptly: ‘an overly expansive definition of active participation in hostilities would be inappropriate as its consequence would be that children associated with armed groups lose their protected status as persons hors de combat’. 43 The result would be that ‘what the Court is seeking to give with one hand it is taking away with the other’. 44
It is, however, questionable whether the phrase ‘to participate actively in hostilities’ under Article 8(2)(e)(vii) ICC Statute should be interpreted as referring to the same conduct as ‘taking… active part in hostilities’ under IHL and as included in other provisions of the ICC Statute. While the wording is essentially similar and admittedly confusing, Graf emphasized that Article 8(2)(e)(vii) ICC Statute aims to protect children and should therefore entail a broad interpretation of the notion of active participation of hostilities. 45 In contrast, under IHL the notion of DPH excludes civilians from protection and should be interpreted narrowly. 46 A similar argument could be used to interpret differently the notion of active participation in hostilities under Article 8 ICC Statute, i.e. Articles 8(2)(c) and 8(2)(e)(vii). Indeed, the travaux préparatoires show that states intended to include a broader notion of active participation in hostilities in Article 8(2)(e)(vii) ICC Statute than what is ordinarily covered by DPH under IHL. 47 It is unfortunate that the drafters did not use clearer language to give effect to this noble intent.
In order to resolve this dilemma it may not be necessary to change the ICC Statute. 48 Other equally authentic language versions of the ICC Statute use terms that provide a basis for a nuanced interpretation. 49 For example, in the French version DPH in the classical IHL meaning under Article 8(2)(c) and 8(2)(e)(i) ICC Statute is referred to as ‘participent directement aux hostilités’ , 50 while using children ‘to participate actively hostilities’ under Article 8(2)(e)(vii) is referred to as ‘participer activement à des hostilités’ . 51 Importantly, the latter is not a notion found in IHL treaties and does not provoke the same confusion. In light of the less ambiguous wording used at least in the French and Spanish versions of the ICC Statute, the different objectives pursued under the different provisions, and the clear intent of the drafters, the notion of ‘to participate actively in hostilities’ under Article 8(2)(e)(vii) can be interpreted as being broader than the concept of DPH under other provisions of the ICC Statute. Yet, if this interpretation is followed, it must be clear that such broad interpretation is without effect on the notion of DPH under other provisions of Article 8 ICC Statute or IHL.
The question remains whether sexual violence could fall under this broader notion of ‘participate actively in hostilities’ as interpreted by the ICC in the Lubanga and the Katanga cases. It would certainly not fall under the DPH notion under IHL. 52 The two criteria adopted by the Trial Chambers — namely the ‘support provided by the child to the combatants’ and the ‘consequential risk’ — are rather broad. As Vité pointed out correctly, ‘[u]sing these factors means that it is not possible to identify, in the abstract, activities that are clearly unrelated to the hostilities and therefore excluded. 53 While this could lead to Judge Odio Benito’s conclusion that being used for sexual purposes may amount to an active participation in hostilities, it seems doubtful whether such conclusion corresponds with the majority’s approach. The Chamber provided a few hints on how to understand its approach. In particular, it invoked the travaux préparatoires, which suggest that ‘although direct participation is not necessary, a link with combat is nonetheless required’. 54 In addition, the Chamber seemed to agree with PTC I which pointed out that certain activities are ‘clearly unrelated to hostilities’, such as ‘food deliveries to an airbase or the use of domestic staff in married officer’s quarters’. 55 Against this background, it would be difficult to conclude that sexual violence committed by members of an armed group against children belonging to the same group has a sufficient link to combat operations. 56 Rather, such violence seems unrelated to hostilities, in a way similar to domestic chores in an officer’s quarter. As a result, being used for sexual purposes cannot not be considered as amounting to an active participation in hostilities under Article 8(2)(e)(vii) ICC Statute.
B. Sexual Violence against Child Soldiers as a War Crime
1. Children as Members of Armed Groups
In order to determine whether child soldiers were entitled to protection against acts of rape and sexual slavery by members of their own group, the PTC started its examination of counts 6 and 9 against Ntaganda under Article 8(2)(e)(vi) ICC Statute by assessing ‘whether these persons were taking direct/active part in hostilities at the time they were victims of acts of rape and/or sexual slavery’. 57 The PTC inquired whether the victims enjoyed, at the time of the alleged crimes, fundamental guarantees under IHL protecting persons who do not or no longer participate in hostilities, 58 the violation of which may constitute a war crime. With regard to child soldiers, the PTC argued that mere membership in an armed group would not mean that children could automatically be considered directly participating in hostilities and thereby temporarily lose their protection under IHL. 59 Through this rather swift conclusion, the PTC avoided any consideration of the status of children that are recruited into the fighting forces of a party to a non-international armed conflict, and of possible consequences of children being considered members of such fighting forces.
Under IHL, a distinction needs to be drawn between, on the one hand, civilians who enjoy protection except if they directly participate in hostilities, and, on the other hand, members of armed forces or groups who do not enjoy such protection unless they have laid down their arms or are otherwise placed hors de combat . 60 As the International Committee of the Red Cross (ICRC) has found based on extensive research and consultation with government experts:
Under customary and treaty IHL, civilians lose protection against direct attack either by directly participating in hostilities or by ceasing to be civilians altogether, namely by becoming members of state armed forces or organized armed groups belonging to a party to an armed conflict. 61
Determining membership in irregular armed forces, including armed groups, has been subject to considerable debate. Two main approaches must be distinguished. Some argue that organized armed groups consist not only of their fighting forces but also of support staff, including ‘technicians, drivers, secretaries, and the like’. 62 This ‘unqualified membership approach’ 63 arguably respects the principle of equality of belligerents because regular armed forces also include support staff. 64 In contrast, the ICRC takes a narrower approach to membership in organized armed groups. Under the ICRC’s approach, membership of armed groups may consist of dissident armed forces or of individuals assuming ‘a continuous function for the group involving his or her direct participation in hostilities’, 65 a so-called ‘continuous combat function’. This functional approach to membership in armed groups divides what is broadly understood as an armed group into (a) its armed forces, and (b) civilian components consisting of those individuals affiliated with the armed group but not assuming a continuous combat function. In case of doubt, individuals must be presumed to be civilian. 66 Whichever approach is taken, it is understood that members of an armed group no longer qualify as civilians under IHL. 67
Without going into the issue of membership in an armed group, the PTC suggests that children must in any case be considered civilians because ‘membership of children under the age of 15 years in an armed group cannot be considered as determinative proof of direct/active participation in hostilities’. 68 This suggests that even if children are members of the armed group, they remain civilians and only lose the protection granted under IHL if and for such time as they directly participate in hostilities. This position is laudable in order to protect children under IHL. In the view of the PTC, the loss of protection would contradict the ‘very rationale underlying the protection afforded to such children against recruitment and use in hostilities’. 69 Indeed, prima facie , it stands to reason that if a child is unlawfully and often coercively recruited into an armed group, the child’s special protection should not be lost through this unlawful act. From a legal perspective, one can argue that the recruitment of children or their use in hostilities is a ‘continuous crime’ 70 committed against a category of civilians that enjoys special protection. Therefore, the continuing character of this crime as well as the resulting continuous participation in hostilities cannot change the status of the child from civilian victim of a crime into member of the armed group assuming a continuous combat function. 71
This argument is, however, questionable. When considering who participates directly in hostilities or may assume a continuous combat function, IHL requires a purely factual assessment of the circumstances. It is not pertinent to assess whether an individual was voluntarily enlisted or forcefully conscripted to determine whether he or she assumes a continuous combat function. 72 Similarly, the age of the person has also been considered irrelevant. 73 Indeed, it would be very difficult for armed forces and groups to determine the exact age of their opponent in a combat situation. In combat situations, IHL does not prohibit a soldier from attacking an opponent because he/she might be under-aged. 74 This is, for example, illustrated in the 2015 US Military Manual, which points out with regard to child soldiers that, regardless ‘[i]f children are… employed in armed conflict, they generally are treated on the same basis as adults… whether a civilian is considered to be taking a direct part in hostilities does not depend on that person’s age’. 75 If directly participating in hostilities is purely factual and independent of a civilian’s age, similar considerations may lead to the conclusion that assuming a continuous combat function is also purely factual and irrespective of age considerations. As Goodwin-Gill and Cohn found: ‘to conscript or recruit soldiers, of whatever age , is necessarily to change their status; to convert them from civilians… to fighters who can be personally attacked on that account alone’. 76 This interpretation would correspond to the fact that in international armed conflict, children can (unlawfully) be members of state armed forces, assume combatant status and become prisoner of war if captured — just as adults. 77
2. Limitations to a Possible Loss of Protection
If the conclusion is followed that under IHL children can, in principle, become member of armed groups or forces and thereby lose their protection against attack, for the determination of membership the ICRC’s narrow and purely functional definition of who can be considered member of armed forces or groups should be followed. Under this approach, not every child who is abducted, enlisted, or conscripted by an armed group automatically loses his or her protection as a civilian and assumes a continuous combat function as part of the group’s armed forces. In a number of circumstances, children serve armed groups in — mostly — non-combat-related functions, ‘including but not limited to: cooks, porters, nurses, spies, messengers, administrators, translators, radio operators, medical assistants, public information workers, youth camp leaders, and girls or boys used for sexual exploitation’. 78 When only fulfilling these functions, children do normally not assume a continuous combat function but remain protected. 79 Even if a child spontaneously, unorganized, or sporadically participates in hostilities, the child regains his or her protection under IHL once this specific participation is over. 80 As a result, children that are enlisted or conscripted by armed groups and used as sex slaves or for other sexual purposes without assuming a continuous combat function remain civilians and undoubtedly protected under IHL.
In contrast, as found in the Lubanga case, many children, in particular those who are physically able to carry weapons and to engage in combat, may be considered to have assumed combat functions in armed groups that involve their direct participation in hostilities. 81 In these cases, children may lose their civilian status and their special protection for the time that they assume a continuous combat function. 82 A similar argument pertains in the slightly more difficult case of children assuming tasks consisting of a mix of combat and non-combat functions. Reportedly, girls in Eastern DRC have been used as ‘fighters one minute, a “wife” or “sex slave” the next, and domestic aides and food providers at another time’. 83 When classifying these individuals as either civilians or members of an armed group assuming a continuous combat function, at least the ICRC’s DPH guidance suggests that only members of a armed group who fulfil ‘exclusively’ non-combat functions do not assume a continuous combat function. 84 This means that if a child is recruited into an armed group, has received military training, and is expected to participate in hostilities but in practice assumes both combat and non-combat functions, this child will not be considered a civilian.
Nonetheless, recognizing that children can lose their status as civilians when assuming a continuous combat function does not necessarily mean that they lose all protection afforded by IHL. IHL rules on direct participation in hostilities and membership in armed groups have been developed with regard to the conduct of hostilities, which by definition occurs between two opposing parties. In this particular context childern that directly participates in hostilities — or arguably assume a continuous combat function — can be attacked by the opponent, irrespective of their age and the circumstances of their recruitment. In contrast, a similar loss of protection under IHL may not apply with regard to acts committed by members of a child’s own group outside the conduct of hostilities. It contradicts humanitarian principles and considerations of military necessity to argue that when becoming member of an armed group, children also lose their special protection vis-à-vis those who are responsible for their unlawful recruitment. It is barely conceivable that a bona fide interpretation of the law can lead to a situation in which an armed group violates the law by recruiting a child but thereby circumvents the various protections IHL foresees for children. Therefore, the fact that a child may lose his or her protection against direct attack or its civilian status vis-à-vis its opponents when directly participating in hostilities or assuming a continuous combat function should not be interpreted as giving a carte blanche for ill-treatment to those who recruited the child. 85 The better view is that, except in its relationship to the adversary, children retain their civilian status and therefore their special protection under IHL in all circumstances.
In sum, when considering the status of children associated with armed groups, in many cases these children remain civilians because they do not assume a continuous combat function. Thus, they enjoy all protections granted to civilian children under IHL. Children may lose their protection against attack in the context of hostilities if they participate directly in hostilities, and if they assume a continuous combat function as part of an armed group or force. Yet, the particular reasons which may explain children’s non-civilian status or loss of protection vis-à-vis their opponents should not be misunderstood as also depriving them of their civilian protections towards members of their own group. Hence, even if becoming member of an armed group party to a conflict — be it through a qualified or unqualified membership approach — the armed group must continue to grant the child his or her special protections.
If this reasoning is not followed and a child is considered (a) to assume a continuous combat function, and (b) to lose his or her civilian status and the related IHL protections also vis-à-vis his or her own party, children would only regain protection under IHL if they lay down their arms or are ‘placed “hors de combat” by sickness, wounds, detention, or any other cause’. 86 With regard to intra-party sexual violence, this raises at least two questions that shall be considered in the following sections: first, does IHL prohibit intra-party violence; and second, under what conditions can victims of sexual violence be considered hors de combat .
3. Intra-Party Protection
The question of whether IHL protects persons ‘taking part in hostilities from crimes committed by other persons taking part in hostilities on the same side of the armed conflict’ 87 was raised explicitly in the Ntaganda decision; yet, following its reasoning as discussed above, the PTC did not provide an answer. As pointed out by the Defence during the confirmation of charges hearings, precedence on this question exists in international jurisprudence. The Special Court for Sierra Leone (SCSL) held that ‘the law of armed conflict does not protect members of armed groups from acts of violence directed against them by their own forces’. 88 In the SCSL’s view,
While supported by some commentators, 90 others have suggested that ‘things are not quite as self-evident as the traditional position suggests’ 91 and that the SCSL’s ‘rather cursory reasoning’ contains certain ‘sweeping and unqualified assertion[s]’. 92
The law of international armed conflict was never intended to criminalise acts of violence committed by one member of an armed group against another, such conduct remaining first and foremost the province of the criminal law of the State of the armed group concerned and human rights law. In our view, a different approach would constitute an inappropriate reconceptualisation of a fundamental principle of international humanitarian law. We are not prepared to embark on such an exercise. 89
Traditionally, an important part of IHL was developed to regulate hostilities between opposing forces and to protect persons that do not or no longer participate in hostilities against a party to which they do not belong. 93 Yet, under IHL it is equally well established that parties to an armed conflict owe certain obligations to their own troops. This is the case, for example, with regard to the protection of the wounded and sick. Under Articles 12 and 13 of the First and Second Geneva Conventions 1949, ‘the wounded and sick shall be respected and protected in all circumstances’. Persons protected under this provision include explicitly all ‘[m]embers of the armed forces of a Party to the conflict’. As pointed out by Pictet in the 1952 ICRC commentary on Article 12 First Geneva Convention 1949,
Intra-party protection has been explicitly included in Article 10 Additional Protocol I. 95
the essential idea which was championed by the founders of the Red Cross and, since 1864, has been the focal point of the Geneva law — [is] namely, that the person of a combatant who has been placed “hors de combat” by wounds, sickness or any other cause, such as shipwreck, is from that moment sacred and inviolable. He must be tended with the same care whether he be friend or foe . 94
Moreover, the International Criminal Tribunal for the former Yugoslavia (ICTY) has repeatedly advanced that in today’s armed conflicts, ‘not only the text and the drafting history of the [Geneva] Convention but also, and more importantly, the Convention’s object and purpose’ must be assessed to determine their protective scope. 96 Accordingly, in 1999 the ICTY Appeals Chamber argued in the Tadić case that in order to qualify as a protected person under Article 4 of the Fourth Geneva Convention, the question of whose national a victim is — as provided in the text — should not necessarily be decisive. Instead, the Chamber found that in ethnically motivated conflicts ‘allegiance to a party to a conflict’ should be decisive to determine whether a person qualifies as a protected person. 97 Following this interpretation, in the Prlic case the Trial Chamber found that Muslim members of the Croatian Defence Council who were detained by their own forces could be considered ‘protected persons’ under Article 4 of the Fourth Geneva Convention because they were perceived as loyal to enemy armed forces. 98 In these circumstances the ICTY found that IHL provides protection for persons against acts committed by persons who are formally members of the same armed forces.
IHL of non-international armed conflict does not contain provisions that explicitly apply to intra-party conduct. Contrary to API, the obligation that ‘the wounded and sick shall be cared for’ under common Article 3 Geneva Conventions 1949 and APII does not state intra-party obligations. Nonetheless, in light of the parallel obligation under the laws of international armed conflict and in light of IHL’s protective object and purpose, it should be concluded that the obligation to care for the wounded and sick in non-international armed conflicts similarly applies whether the person in need be friend or foe. 99
Against this background, the SCSL’s categorical finding that IHL does not protect against intra-party violence is incomplete. Yet, finding that any party to an armed conflict has an absolute obligation to respect and to protect the wounded and sick does not mean that other provisions of IHL apply equally between members of the same party. 100 An analysis of the pertinent provisions is required. For the present purpose, the pertininent provision is common Article 3 Geneva Conventions 1949. This article’s personal scope of application is defined as ‘[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause’. 101 The wording of common Article 3(1) does not exclude persons belonging to the party that is bound by the provision. Similarly, the humanitarian object and purpose of common Article 3, which expresses ‘elementary considerations of humanity’, 102 would weight in favour of a broad interpretation of its protective scope.
Considering the context of the provision, it could be argued that as part of IHL, which has traditionally been considered to apply to civilians or to adversaries that are hors de combat , common Article 3 may not apply to intra-party violence. At the same time, the absolute obligation to respect and to protect the wounded and sick under Article 3(2) Geneva Conventions 1949 forms part of the provision’s context and suggests that common Article 3 may entail obligations of parties vis-à-vis their own troops. Indeed, when interpreting Article 3(1) Geneva Conventions 1949 in the 1952 commentary, the ICRC drew on IHL provisions demanding protection for the wounded and sick, including to ‘brothers-in-arms, the enemy and allies’, to underline that ‘when faced with suffering no distinction should be drawn’ and that the humane treatment requirement was set out to apply without leaving ‘no possible loophole’. 103 As Kleffner argues, while in international armed conflicts certain protections are granted based on criteria such as nationality, in non-international armed conflicts protection is granted based on the activities in which an individual engages. If persons do not or no longer participate actively in hostilities, they ‘shall in all circumstances be treated humanely, without any adverse distinction’. 104 Distinguishing between persons based on their membership in a party to a conflict would go against the cardinal principle of non-discrimination. 105
State practice on this particular point is rare, which may not be surprising because states are in any case bound to respect minimum humanitarian guarantees against their own troops under international human rights law. 106 There are also no signs in the travaux préparatoires of common Article 3 Geneva Conventions 1949 that the drafters considered the provisions’ applicability to intra-party violence. However, in practice an overly narrow interpretation of the personal scope of common Article 3 could have important implications. For example, under the doctrine of command responsibility, which applies in international as well as in non-international armed conflicts, 107 armed groups may be required to hold trials against their own members in response to serious IHL violations. 108 Unless it is agreed that international human rights law binds these groups, if common Article 3 Geneva Conventions 1949 and other norms of IHL were judged inapplicable, no international law provision would require such trials to respect minimum fair trial guarantees. Similarly, unless common Article 3 applied, ill-treatment and torture by armed groups against their own forces would not be prohibited under IHL. In contrast, the argument that the prohibition of child recruitment or using them to actively participate in hostilities constitutes evidence of a norm protecting children against unlawful acts committed by their own group is not convincing. 109 Following the approach that a child is a civilian unless he or she directly participates in hostilities, at the time of recruitment or before being used in hostilities the child is a civilian and as such protected.
As a result, while IHL developed traditionally as a body of law regulating primarily inter-party relationships, it also includes certain intra-party obligations. This includes fundamental humanitarian provisions under common Article 3 Geneva Conventions 1949. As pointed out by Kleffner in a recent commentary on the Geneva Conventions: ‘No requirement, other than that the person concerned abstains from actively participating in hostilities, conditions the protection under Common Article 3.’ 110 Parties to an armed conflict owe certain obligations to their brothers and sisters in arms when they are placed hors de combat .
4. ‘Hors de combat’ through Intra-Party Sexual Violence
Common Article 3 of the Geneva Conventions 1949 does not define the notion hors de combat but simply provides a non-exhaustive list of examples of how persons can assume this status: ‘by sickness, wounds, detention, or any other cause ’ (emphasis added). Clarity on its meaning can be found in subsequent practice. Article 41 Additional Protocol I defines ‘hors de combat’ as being in the hands of the adversary; having surrendered; or as having been ‘rendered unconscious or… otherwise incapacitated by wounds or sickness, and therefore… incapable of defending himself; provided that in any of these cases he abstains from any hostile act and does not attempt to escape’. 111 In accordance with the plain meaning of hors de combat , the gist of this provision is that someone is hors de combat if he or she no longer poses a threat to the adverse party and that harming the person would not provide any military advantage. 112
The concept of protection for persons that are hors de combat was not developed with intra-party violence in mind. Members of the same party to the conflict are normally not considered a threat to each other, and intra-party violence does not provide a military advantage. As persons belonging to the same party do not engage in combat against each other in the first place, the notion of hors de combat seems ill-placed. Due to the open definition of reasons why a person may be hors de combat , it is nonetheless possible to apply the notion to the case of intra-party sexual violence. Acts of rape committed against children under the age of 15 by members of their own group frequently lead to severe physical and psychological harm, 113 which renders the victim at least temporarily incapacitated, defenceless and thus hors de combat . In addition, the notion of hors de combat is also understood as including persons who are in the power of a party to the conflict, normally through detention by the adversary. But the latter requirement must not be interpreted narrowly. At least during acts of rape or sexual slavery, which by definition include an element of coercion or deprivation of liberty, a child is in the power of the perpetrator and confined against his or her will. 114 These considerations show that victims of intra-party rape or sexual slavery, in particular children under the age of 15, can be considered hors de combat for the purposes of common Article 3 as well as Article 8(2)(e)(vi) ICC Statute.
As a result, even in cases where children may no longer be considered civilians under IHL, intra-party sexual violence can still amount to war crimes under the ICC Statute. The fundamental obligations under common Article 3 Geneva Conventions 1949 to treat humanely all persons who do not take an active part in hostilities protect members of armed groups against certain forms of intra-party violence, provided the victims can be considered hors de combat . In order to constitute a war crime, it would also need to be determined that such acts ‘took place in the context of and was associated with’ a non-international armed confict. 115 It is certainly correct that not any act of sexual violence within armed forces may amount to an act of sexual violence prohibited by IHL and punishable as a war crime. 116 Without going into further detail, however, in the case of sexual violence against children that were recruited into an organized armed group that is engaged in a non-international armed conflict, it seems clear that a subsequent act of rape or sexual slavery was ‘shaped by or dependent upon the environment — the armed conflict — in which it is committed’. 117
Intuitively, answering the question of whether international law prohibits sexual violence by armed groups against child soldiers in their own ranks should be straightforward. However, as can be seen from ICC jurisprudence, this is not necessarily the case under IHL and addressing such violence as a war crime under the ICC Statute raises a number of intriguing legal questions. This article has shown that it is difficult to subsume rape or other forms of sexual violence under the crime of using children to participate actively in hostilities under Article 8(2)(e)(vii) ICC Statute. The prima facie much clearer avenue to prosecute intra-party sexual violence against children directly under Article 8(2)(e)(vi) ICC Statute is, however, not without obstacles either. Two situations must be distinguished: first, as suggested by the PTC in the Ntaganda case, if children qualify as civilians under IHL, they are unambiguously protected against any form of direct violence, unless and for such time as they directly participate in hostilities. In contrast, a second and more complex situation occurs if children are considered members of the fighting forces of a party to the conflict and no longer civilians. As argued in this article, losing civilian status vis-à-vis the adversary in the context of the conduct of hostilities should not mean that children also lose fundamental protections vis-à-vis those who unlawfully use them. In addition, even if children are no longer considered civilians, they continue to benefit from IHL protection if they are rendered hors de combat . This article has provided arguments to show that IHL grants essential protection against intra-party violence and that, when raped or taken as sexual slaves, children fall under the protective scope of common Article 3 Geneva Conventions 1949.