International Law Bulletin / 09_2017


Sexual Violence against Child Soldiers: The Limits and the Dynamic of International Criminal Law based on the Ntaganda Case[1]

In addition to participating in hostilities, child soldiers are often targets, among others, for rape, sexual slavery and forced prostitution. The forcibly use of children in armed hostilities, is not restricted to physical force, but may include threat of force or coercion, duress, detention, psychological oppression or abuse of power by taking advantage of a total coercive environment. Given that the term “child” has to do with any person that is under the age of 18, the use of child soldiers is connecting with significant efforts to address this issue in the context of the implementation of the relevant provisions of the International Criminal Law.

Recently, the issue of use of sexual violence against child soldiers has been dealt within the Ntaganda Case before the International Criminal Court (therefore ICC). From the preliminary stages, it shown that both rape and sexual slavery of child soldiers, especially female, by members of the same armed forces can constitute war crimes as serious violations of Article 3 common to the four Geneva Conventions from the provisions of Article 8(2)(e)(vi) of the ICC Statute. This case-law followed corresponding judgments of the Special Court for Sierra Leone, based on Article 3 (e) of its Statute.

However, Ntaganda Case was the first case were, in a justified manner, the specific provisions of Article 8 of ICC’s Statute, were interpreted as part of the specific crime of use of sexual violence against child soldiers by members of the same armed forces. Characteristically, in this context, the concept of sexual abuses references was characterized by the abusive use of girls (so-called "guduria") as “objects” of sexual violence.

It is remarkable that Trial Chamber IV of the ICC recently issued a very interesting decision in the Ntaganda Case. Especially, was noted by the Defence that the Court could not have jurisdiction over sexual crimes allegedly committed against UPC/FPLC child soldiers, because war crimes cannot be committed against combatants from the same armed forces as the perpetrator, due to the ambit of Domestic Law and Human Rights, and were not covered by the war crimes prohibition.

Analyzing the above position, it must be said that the Defence’s argument is, rather, convincing. The Geneva Conventions and their Additional Protocols, protect certain categories of persons and Ntaganda, as it was noted, is charged with alleged war crimes concerning protected persons of the Geneva Conventions under Article 8 (2)(e)(vi) of the ICC Statute, as “other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law”.

Common Article 3 of the Geneva Conventions refers explicitly to “persons taking no active part in hostilities”, while Article 4 of Additional Protocol II, which contains the prohibition on outrages upon personal dignity, rape, enforced prostitution and any other form of incident assault, applies to those persons who do not take direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted.

It is a fact that crimes under Article 8 (2)(c) and (e) of the ICC Statute cannot be committed against persons who taking part in hostilities. Furthermore, victims that identified in paragraphs 66-72 of the Confirmation Decision, abducted to act as domestic servants, providing, based on the witnesses testimonies, for “cooking and love services”. In the same Decision, it was mentioned that many girls abducted by the armed forces of UPC/FPLC and have been raped by soldiers in military camps underwent military training.

As it was noted in Lubanga Case, the term “active participation in hostilities”, in order to include a broader range of children who were forcibly recruited as sexual violence victims under the provisions of Article 8 (2)(e)(vii) of the ICC Statute, determined that:


“628….Those who participate actively in hostilities include a wide range of individuals, from those on the front line (who participate directly) through to the boys or girls who are involved in a myriad of roles that support the combatants.”


Based on all the above, Pre-Trial Chamber in Ntaganda Case, argued, in a problematic interpretation, that individuals lose their protection for such time as they’re actively participating in hostilities and those who were subjected to any form of sexual violence were clearly not participating in hostilities at that time. Contrary to this view, Trial Chamber VI, in paragraph 47 of its Decision, determined that most of the prohibitions of sexual crimes under International Humanitarian Law, appear to protect civilians hors de combat in the power of a major party of the armed conflict and it does not considered those explicit protections to limit the scope of the protection against such conduct.

Moreover, given that sexual crimes attained jus cogens status under International Law, the Court stated, in paragraphs 51-53, that “such conduct is prohibited at all times, both in times of peace and during armed conflicts, and against all persons, irrespective of any legal status” and it isn’t necessary to determine whether the victims were members of the armed forces at the relevant time.

So, the conclusion that members of the same armed forces are not excluded as potential victims of sexual violence is an expansive interpretation of Article 8 of the ICC Statute, can be founded on two aspects. First, it must be said that not all war crimes need to be committed against persons protected by the Geneva Conventions and secondly, it must be taken for granted the widespread prohibition of sexual violence under International Law.

As it was stated, the exclusion of members of the same armed group would be “contrary to the rationale of international humanitarian law, which aims to mitigate the suffering resulting from armed conflict, without banning belligerents from using armed force against each other or undermining their ability to carry out effective military operations.” So, given that provision, the Chamber concluded that the general prohibition of sexual violence under International Humanitarian Law was not limited to civilians, regardless of their status.

In conclusion, Ntaganda Case, which is still at trial stage before the ICC, has demonstrated the linking of the complex of sexual crimes as war crimes, but is still creating problematic assumptions about the nature and the duration of sexual violence in general. The prospect of criminal responsibility for the use of sexual violence against child soldiers from members of the same armed forces in this Case, undoubtedly creates a pathway for further establishment of a protective and rectifier policy for child victims of sexual violence. 


[1] Ioannis P. Tzivaras, Phd (Dr.Jur) Faculty of Law, Democritus University of Thrace, Tutor, Faculty of Economics and Administration, Open University of Cyprus, Visiting Professor, Faculty of Law, University of Krakow, Deputy Director of Hellenic Institute for the United Nations.

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Dr. Ioannis P. Tzivaras

LLM. PhD (Dr. Jur.) Faculty of Law, Democritus University of Thrace

Tutor, Open University of Cyprus

Deputy Director of Hellenic Institute for the United Nations

Papasiopoulou 48, Lamia, 35100, GR