The International Criminal Court’s Lubanga decision has been hailed as a landmark ruling heralding an end to impunity for those who recruit and employ children in armed conflict and a pivotal victory for the protection of children. Overlooked amidst this self-‐congratulation is that the ICC incorrectly applied the law governing civilian participation in hostilities which perversely places child soldiers at greater risk of being attacked. The Court created a false distinction between active and direct participation in hostilities. Expanding the kinds and types of behaviors that constitute children actively participating in hostilities expanded Lubanga¹s liability. But under the law of armed conflict active and direct refer to the same quantum of participation. And when a civilian, including a child soldier, directly participates in hostilities, they lose a pivotal protection - the protection from being made the lawful object of attack. The ICC¹s first verdict confuses an already opaque area of the law. Worse, the ICC now provides the international legal imprimatur for the permissible targeting of child soldiers under a wider range of circumstances than previously recognized.
Law as Shield, Law as Sword: the ICC’s Lubanga Decision, Child Soldiers and the Perverse Mutualism of Participation,
3 U. Miami Nat’l Security & Armed Conflict L. Rev.
Available at: http://repository.law.miami.edu/umnsac/vol3/iss1/6