CYIL vol. 12 (2021)

peter klanduch CYIL 12 (2021) applicable in the context of an international armed conflict. Some serious forms of the denial of humanitarian access and assistance might amount to other categories of war crimes, 110 extermination as crime against humanity, 111 or even genocide. 112 4. International Criminal Court The Rome Statute contains only a handful of children-specific provisions. The Preamble reminds us that “during [the 20 th ] century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity.” 113 Certain categories of ICC crimes by definition target children, such as the forcible transfer of children of one group to another group (crime of genocide) 114 or the recruitment of children under the age of 15 and their use in hostilities (war crime). 115 As of today, there are 14 situations under the ICC investigation. 116 Some of the ongoing or closed cases are particularly relevant to the discussion on accountability for crimes against children. Thomas Lubanga Dyilo (Democratic Republic of the Congo) The first conviction before the ICC is related to the recruitment of child soldiers. The accused, founder and president of the Union des Patriotes Congolais (UPC) and its armed wing, the Forces Patriotiques pour la Libération du Congo (FPLC), was found guilty of war crimes of “enlisting and conscripting children under the age of 15 years and using them to participate actively in hostilities.” The ICC found that children in the military camps endured harsh training regimes and were subjected to a variety of severe punishments. They were engaged in hostilities, including during battles. They were also used as soldiers and as bodyguards for senior officials including the accused himself. Thomas Lubanga was sentenced to 14 years of imprisonment. 117 In its decision, the Court accepted that the line between voluntary and involuntary recruitment in this case was legally irrelevant and decided to apply a broad interpretation of the term “active participation in hostilities” to ensure justice and protection for all children associated with armed conflicts. 118 The case also involved allegations of incidents of sexual violence against child soldiers but Thomas Lubanga was charged only with war crimes of conscripting or enlisting. Although the Court heard evidence of sexual violence, it found that it would not consider it because the Prosecutor had not included rape and sexual enslavement at the relevant procedural stages and the relevant facts were not included in the decision on the confirmation of charges. 119 The

110 Ibid. , Article 8(2)(b)(iii), Article 8(2)(e)(iii). 111 Ibid. , Article 7(1)(b). 112 Ibid. , Article 6(c). 113 Ibid. , preambular para. 2. 114 Ibid. , Article 6(e). 115 Ibid. , Article 8(2)(b)(xxvi), Article 8(2)(e)(vii).

116 International Criminal Court, “Situations under investigation,” https://www.icc-cpi.int/pages/situation.aspx. 117 Prosecutor v. Thomas Lubanga Dyilo , “Judgment pursuant to Article 74 of the Statute,” ICC-01/04-01/06, 14 March 2012. 118 OSRSG/CAAC, The Six Grave Violations, p. 12. 119 Prosecutor v. Thomas Lubanga Dyilo , “Judgment pursuant to Article 74 of the Statute,” ICC-01/04-01/06, 14 March 2012, para. 630.

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