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Law As Shield, Law As Sword: The Icc’S Lubanga Decision, Child Soldiers And The Perverse Mutualism Of Participation, Chris Jenks
Law As Shield, Law As Sword: The Icc’S Lubanga Decision, Child Soldiers And The Perverse Mutualism Of Participation, Chris Jenks
University of Miami National Security & Armed Conflict Law Review
The International Criminal Court’s Lubanga decision has been hailed as a landmark ruling heralding an end to impunity for those who recruit and employ children in armed conflict and a pivotal victory for the protection of children. Overlooked amidst this self-‐congratulation is that the ICC incorrectly applied the law governing civilian participation in hostilities which perversely places child soldiers at greater risk of being attacked. The Court created a false distinction between active and direct participation in hostilities. Expanding the kinds and types of behaviors that constitute children actively participating in hostilities expanded Lubanga¹s liability. But under the law of …