In March and April two milestones were reached in the fight against impunity for child rights’ violations. The International Criminal Court (ICC) convicted Thomas Lubanga, former rebel commander in the Democratic Republic of Congo (DRC), for “conscripting and enlisting children under the age of 15 and using them for active participation in hostilities”; while the Special Court for Sierra Leone found Charles Taylor, former Liberian president guilty of aiding and abetting the commission of that same crime, among others, by rebel forces in Sierra Leone in the 1990’s.
The two recent verdicts, each in their own way, show how far international justice can reach.
The Lubanga case made it clear that a war crime is committed not only when children are sent to combat, but also when they are used to provide general support to combatants away from the front lines. This includes the child who gets food and water, cooks, cleans and caters to the combatants’ every need. Active participation means fighting, but also, as the Court puts it, any activity that exposes the child to “real danger as a potential target”. This approach is a welcome departure from previous jurisprudence, held namely by the Special Court for Sierra Leone, where support to combatants outside the strict context of combat was excluded from the definition of active participation in hostilities. This meant that the plight of many children, in particular girls, was left silent.
The Charles Taylor case establishes criminal responsibility beyond borders and immediate chains of command. Taylor, from Liberia, was convicted for crimes committed in neighboring Sierra Leone by rebel forces that were nonetheless found not to be under his effective command and control. The practical assistance, encouragement and moral support he gave to the infamous Revolutionary United Front (RUF) in Sierra Leone were sufficient to make him criminally responsible for the civilians who were killed, maimed, raped, enslaved, as well as the for the child soldiers who served with the RUF.
These two historical verdicts have brought more depth and reach to international criminal law and help to bring justice to thousands of children affected by armed conflict in Sierra Leone and the DRC.
However, impunity still remains a major concern, in particular with respect to the DRC. Bosco Ntaganda, a former rebel leader indicted for conscripting and enlisting children under the age of 15 and using them for active participation in hostilities, is yet to be arrested and transferred to the ICC. He was made general in the Congolese army in 2009. Ntaganda has reportedly gone into hiding recently, as the Congolese government pledged to arrest him for his alleged involvement in an army mutiny in the Kivus this past April. However, the Congolese government has not stated their intention to transfer him to the ICC.
