The International Criminal Court and the Protection of Child Soldiers against Intra-Party Violence

Equal to the horrors suffered by children conditioned and exploited to perpetrate horrific violence on their battlefield adversaries is the violence they themselves endure often at the hands of their commanders and comrades. The Ntaganda case of the International Criminal Court (ICC) exposed a fault line in the core of international humanitarian law (IHL), which had the potential to cause a chink in the armour the law affords children affected by armed conflict. Ntaganda relied on an obscure, yet orthodox interpretation of IHL, challenging the jurisdiction ratione materiae of the court to prosecute him at once for the use of children for active participation in hostilities, and the rape and sexual slavery of the same children as war crimes. The basis for the argument is that ‘the laws of armed conflict do not protect members of armed groups from acts of violence directed against them by their own forces’. In particular, the defence argued that ‘the established framework of international law’ imports a status requirement in regard to the victim of the crime, the status requirement being that protection is reserved for ‘(i) persons taking no active part in the hostilities; (ii) members of armed forces who have laid down their arms; and (iii) those placed “hors de combat” by sickness, wounds, detention, or any other cause’. Trial Chamber VI dismissed Ntaganda’s challenge and the Appeals Chamber confirmed this finding, however, these decisions sharply divided high-profile members of the IHL and international criminal law (ICL) communities. The Ntaganda case has indeed given rise to considerable commentary, the thrust of which supports the Court’s conclusion. The aim of this chapter is to make a more discrete, yet vital contribution to the understanding of this issue by analysing whether children continue to enjoy special protection in terms of IHL once they are enlisted, conscripted or used for active participation in hostilities, and whether such children enjoy protection against sexual violence on an intra-party basis, as a matter of law.