A CRITICAL ASSESSMENT OF USING CHILDREN TO PARTICIPATE ACTIVELY IN HOSTILITIES IN LUBANGA

Collection Location Koleksi E-book & E-Journal Perpustakaan Pusat Unila
Edition vol 24 issue 2
Call Number
ISBN/ISSN 1572 9850
Author(s) WAGNER, NATALIE
Subject(s) LAW
Classification NONE
Series Title
GMD E-Journal
Language English
Publisher Springer
Publishing Year 2013
Publishing Place Switzerland
Collation
Abstract/Notes ABSTRACT. The first judgment of the International Criminal Court, delivered on 9 March 2012, raises a pivotal and equally controversial issue of what constitutes active participationinhostilities’forthepurposeofthechildsolideroffencesundertheRome Statute in the case against Thomas Lubanga Dyilo. The Majority (Judge Fulford and JudgeBlattmann)adoptedabroaddefinitionofthenotionofactive’participationand the Minority (Judge Benito) an even more ample one. This was achieved by distinguishing between active participation in hostilities’ and direct participation in hostilities’andbyrecourseto thetravauxpre ´paratoiresoftheRomeStatuteandtohuman rights norms. The purpose of this contribution is to demonstrate that the meaning of active participation in hostilities’ under Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Rome Statute is not ambiguous or obscure, but is the same as that of direct participationinhostilities’underinternationalhumanitarianlaw.Recoursetosupplementary means of interpretation by the Trial Chamber, be it to the travaux pre ´paratoires, or to human rights norms, was unnecessary and misguided. The contribution will also draw someconclusionsonhowcriminalliabilitybeforetheICCmaybeexcludedforArticles 8(2)(b)(xxvi) or 8(2)(e)(vii) of the Rome Statute on the basis of the broad definition adopted by the Trial Chamber of the notion of active participation in hostilities’ and will discuss other consequences arising from the judgement at hand.
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