The International Criminal Court’s DPH Misinterpretation in Lubanga

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| May 24, 2024

Lubanga

Editor’s Note: This post is drawn from the author’s article-length work, “Reuniting ‘Active’ and ‘Direct’ Participation: The International Criminal Court’s DPH Divorce in Lubanga,” appearing in Volume 7, Issue 2 of the Cardozo International & Comparative Law Review.

In the historic Lubanga prosecution, the International Criminal Court (ICC) found Thomas Lubanga Dyilo, former leader of the Union of Congolese Patriots (UPC), guilty of war crimes under the Rome Statute. Lubanga was the ICC’s first case and its first conviction. In 2012, the ICC found Lubanga had conscripted and actively used children under the age of fifteen in hostilities. Without a doubt, the case was an important milestone in international criminal law (ICL) and the law of armed conflict (LOAC).

The ICC’s DPH Divorce of “Active” and “Direct” Participation

The Lubanga case’s historic nature makes it all the more unfortunate that, in interpreting the Rome Statute’s provisions outlawing the use of child soldiers in hostilities, the ICC promulgated a new, unnecessary, and unworkable legal interpretation. Articles 8(b)(xxvi) and 8(e)(vii) of the Rome Statute, the provisions Lubanga was found guilty of violating, make the active participation of child soldiers in hostilities a war crime. The ICC’s error, as I argue in my article, was in its interpretation of the requirement for “active” participation.

The notion of direct participation in hostilities (DPH) long predates the Rome Statute and Article 8. DPH was first codified in Common Article 3 to the 1949 Geneva Conventions and also appears in the 1977 Additional Protocols. In ICL, DPH was a key requirement of many crimes appearing in the statutes of various international criminal tribunals, including the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone.

The doctrine of DPH confers protection on a class of noncombatants and civilians, but only so long as they do not participate actively or directly in the hostilities. DPH strikes an important balance between enabling lawful combatants to perform military operations and protect themselves, while providing protection to those most vulnerable during conflict. Throughout the various treaties that employ DPH, the language differs between “active” and “direct” participation, depending on the treaty and the specific provision within that treaty.

As criminal tribunals, commentators, international organizations, and States interpreted these provisions in the late twentieth and early twenty-first centuries, a synonymity developed between the terms “active” and “direct.” For example, in the 1998 Akayesu prosecution, the ICTR specifically held that the terms “active” and “direct” are “so similar that . . . they may be treated as synonymous.” The International Committee of the Red Cross published its Interpretive Guidance on DPH in 2009, also finding “active” and “direct” participation to be synonymous. For a variety of linguistic, plurilingual, and practical reasons, the doctrine of DPH encompassed both “active” and “direct” participation within the same standard.

However, when the ICC found Lubanga guilty of conscripting and using child soldiers in hostilities, the court announced a standard specific to “active” participation that differed significantly from how “active” and “direct” participation had been historically interpreted and applied. The decision essentially created three categories of participation: (1) that which was direct, and therefore active, resulting in the individual’s loss of protection and criminal liability for using child soldiers; (2) that which was active, but not direct, maintaining the child soldier’s protection but creating criminal liability for those that used them for that conduct; and (3) that which was neither active nor direct, maintaining the child’s protection and not violative of Articles 8(b)(xxvi) and 8(e)(vii) of the Rome Statute.

My full article describes why this interpretation contravenes historical interpretations, is legally wrong, and is unworkable practically. This post focuses on the bigger picture of the ICC’s DPH divorce of “active” and “direct” participation.

Lubanga as Part of a Greater Flaw in ICC Jurisprudence

Unfortunately, Lubanga’s divorce of active and direct participation is not the only instance of the ICC adopting new interpretations for terms long-defined under LOAC. Rather, it represents one example of a greater problem within ICC legal interpretations, one that threatens to create differing legal standards in LOAC and ICL. Because the two fields of law are inextricably intertwined, such divergent interpretations threaten the fields’ cohesion.

In a similar case, the Ntaganda case, the ICC Prosecutor advanced an interpretation of “attack” that was contrary to and broader than past definitions of “attack” under LOAC. The Ntaganda Trial Judgment held that two actions—looting a hospital and removing/damaging cultural property in a church—were not legally an “attack” because they did not occur in the conduct of hostilities, resulting in an acquittal on those charges. The Prosecutor appealed, however, arguing for a broader interpretation of “attack” that would only require “an act of violence” regardless “of whether [the] conduct occurred in the conduct of hostilities.”

Ultimately, the Ntaganda Appeals Chamber split on the definition of “attack.” While the judges rejected the Prosecution’s broad definition 4-1, within the four judges denying the appeal there were three separate determinations about why the appeal failed. Ntaganda’s disparate analyses of “attack,” like Lubanga’s interpretation of DPH, is an example of how the ICC is interpreting terms in ICL and separating them from well-established meanings under LOAC.

If this phenomenon continues, there may be a further concern that “the two bodies of law will drift apart on a material level,” as Professor Jachec-Neale put it in a 2020 Articles of War post. This is because the relationship between ICL and LOAC is one of inherent and mutual reliance. LOAC regulates combatants’ conduct during hostilities, laying out the “rules of the road” for lawful combat as it occurs. LOAC attempts to prevent war crimes from happening ex ante by requiring parties to conflicts to comply and implement safeguards before conducting hostilities. On the other hand, ICL, in the context of armed conflict, only applies ex post, or after an individual is alleged to have violated the law. It provides punishment for war crimes when either the accused cannot be held accountable due to his or her affiliation with a non-State entity, as was the case with Lubanga, or when the State party refuses to uphold its obligation to hold accountable those within its ranks who violate the laws of war.

This dichotomy inherently creates a loop. While ICL decisions can tend to “overshadow” LOAC, as Professor Blum has put it, ICL can also strengthen LOAC by providing a necessary enforcement mechanism. Without ICL, LOAC rests on States enforcing LOAC against their own members and against one another. This is an inherently unreliable and inconsistent system, as States frequently interpret various provisions of LOAC differently. ICL strives to set one standard and one enforcement mechanism equally for all combatants to follow. Such jurisprudence lends itself to the goals of LOAC, ICL, and international law generally, affording parties rules that apply equally and a neutral arbiter to resolve conflicts.

ICC decisions like Lubanga, therefore, weaken the loop and mutual reliance between LOAC and ICL. If combatant parties conduct military operations in a manner consistent with long-standing interpretations of international law under LOAC only to have that same conduct criminalized by a new, expansive interpretation by the ICC or under ICL generally, then previously lawful conduct may be deemed to be unlawful. This can lead to States rejecting ICL decisions and bodies like the ICC, undermining the very purpose of the field. In a worst-case scenario, States may even refuse to negotiate or enter into international agreements under both ICL and LOAC, fearing disparate legal interpretations will unreasonably constrict their ability to conduct military operations and place their military personnel at risk of criminal punishment. Even where the likelihood is low or interpretations are only marginally different, the uncertainty that decisions like Lubanga introduce to LOAC and ICL may be enough to discourage States from compliance, especially when LOAC seeks to provide certainty that both sides of a conflict will refrain from certain conduct. 

Future Outlook

Lubanga and its reinterpretation of long-established legal interpretations from LOAC was not only legally wrong, it unnecessarily tears at the connection of ICL and LOAC. Perhaps that is why the ICC has, at least implicitly, avoided whole-heartedly invoking Lubanga’s DPH analysis of a separate active participation standard for child protection provisions.

In the Ntaganda Confirmation of Charges, the ICC analyzed Article 8(2)(e)(vii) as requiring “direct/active participation in hostilities” and did not separate those definitions. The Trial Judgment favorably cited the Lubanga Appeal Judgment for its definition of active participation for Article 8 crimes. The Trial Chamber, while largely avoiding the “direct/active” language and calling the analysis active participation—as “active” is the language in the Rome Statute—largely adopted the Pre-Trial Chamber’s analysis and definition of the scope of active participation. If this interpretation holds, perhaps the legal and practical untenability of Lubanga’s divorce of active and direct standards will be relegated as a jurisprudential mistake, minimizing any long-lasting damage to ICL/LOAC harmony.

Lubanga’s analysis is one of several troubling ICC interpretations that are divorced from long-standing, well-reasoned definitions of LOAC. Going forward, the ICC must seek to maintain congruity in definitions and applications of international legal terms, both in ICL and LOAC, lest the two bodies of law drift apart and lose their key link: the attachment of criminal liability via war crimes for conduct violative of the laws of war during conflict.

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Captain Josef “Polo” Danczuk is an Air Defense Artillery officer in the New York Army National Guard and currently commands the Headquarters and Headquarters Company, 27th Infantry Brigade Combat Team. He is also an associate attorney at the law firm Cravath, Swaine & Moore LLP. The views expressed herein are solely the personal views of the author and do not represent the views of Cravath, Swaine & Moore LLP or legal advice, and do not necessarily reflect those of the United States Army, the United States Government, the New York Army National Guard, or the Government of the State of New York.

 

 

 

 

Photo credit: L. Rose, USAID