Lubanga trial: Is an army of child soldiers a war crime?

Legal experts say the war crimes trial of Congolese warlord Thomas Lubanga is helping to curtail the practice, though child soldiers continue to fight in a number of conflicts.

MADRID - Nine months ago the International Criminal Court at The Hague opened its first trial - putting Congolese warlord Thomas Lubanga in the dock for conscripting and using child soldiers in 2002 and 2003.

Kidnapping or leading kids under 15 into violence and murder might seem an obvious war crime. But in global justice terms, it is a recent one. The first convictions for deploying child soldiers only came in the Freetown tribunals for Sierra Leone in 2004 and 2005.

Lubanga’s trial has proven both bumpy and compelling. Some 28 witnesses have testified, and more than 90 victims have spoken out – many of them female. Indeed, so vivid were female victims’ stories of sexual slavery and soldiery that the court took the unusual and perhaps legally dubious step of expanding Lubanga’s charges mid-trial.

Legal experts note that international justice is evolving. Rape was added as a war crime in the 1990s. Now, with the addition of child soldiers, the law has been refined further. The problem has captured the public imagination, helping to bring it before the court, according to analysts at the International Bar Association (IBA) meeting in Madrid this week.

Drugging innocent children and training them to spy, sabotage, man checkpoints, or kill civilians and each other – to kill “human beings like they were chickens,” as Nina Jorgensen, a senior legal adviser to the Sierra Leone tribunal at The Hague, described it – is a crime that is cresting in global awareness.

“Child soldiers are a ‘campaigning issue’ for human rights,” says Stuart Alford, co-chair of the IBA's war crimes committee. “Murder is a crime, but it does not get pursued in the same way. Child soldiers are also a ‘correctable crime.’”

Is trial changing behavior?

Indeed, raising the profile of child soldier cases – among their advocates is film star Angelina Jolie, who has attended the Lubanga trial – may have had some results. Militias may work harder to hide children, says Cecile Aptel of the International Center for Transitional Justice in Washington. But in Nepal and Columbia, groups have “stopped, released, or demobilized” many soldiers under 18, she said in Madrid.

The problem continues in Uganda, Sudan, Sri Lanka, Myanmar (Burma), the Congo, and Ivory Coast, among other places.

“The substantive law on child soldiers was created quickly by the courts, in much the same way rape was, coming out of the Rwanda and Yugoslavia tribunals,” says IBA executive director Mark Ellis. “Rape has been around for a long time. But as a crime of war it was not elevated or prosecuted until the 1990s.”

Tough case to prove

Yet prosecuting Lubanga on child soldier charges has proven more of a challenge than some experts first thought. The difficulty of proving a soldier's age, his relationship to Lubanga, and that fact that Lubanga knew of the practice – as a commander who was often removed from the front line – has prevented a legal slam dunk. Some analysts think the charges against him may be expanded to include sexual slavery, not only because the trial itself has brought out new facts that victims have petitioned as prosecutable but because they add provable culpability. The Hague trial judges were not unanimous in the decision to expand the charges, and the move also troubles some legal scholars.

Facing your accuser

On the first day of the Lubanga trial the star child soldier witness buckled after facing Lubanga, his former commander – recanting his testimony out of fear. After being reassured by court authorities and no longer subject to Lubanga’s direct gaze (face to face testimony has ended), the young man spent many hours telling his story.

In Madrid, a middle-aged human rights lawyer from Zimbabwe questioned why the definition of a child soldier is set at age 15 and under. Why not 18? “My nephew is 14. I’m not convinced that in a year he will be capable of deciding whether or not to bear arms,” she said.