Dismantling the Notion of “Participate Actively in Hostilities” - A Gender Analysis of the Crime of Using Child Soldiers

Abstract: Children used by military groups in armed conflicts are assigned to different roles and activities depending on their gender identities. In this thesis, therefore, the hypothesis put forward is that application and interpretation of the war crime of “using [children under the age of fifteen years] to participate actively in hostilities” (Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Rome Statute of the International Criminal Court, and Article 4(c) of the Statute of the Special Court for Sierra Leone) require a gender perspective to make effective the protection of all children in armed conflicts. During negotiations prior to the conclusion of the Rome Statute, recognition of female child soldiers’ particular experiences in armed conflicts (e.g., domestic and sexual exploitation) was stressed; this, in relation to the rationale of the crime of using children to participate in hostilities. The present thesis examines caselaw from the International Criminal Court and the Special Court for Sierra Leone, respectively, concerning the notion of “participate actively in hostilities”. Is this legal concept applied and interpreted with due gender sensitiveness? In this thesis, it is argued that jurisprudence of the International Criminal Court and the Special Court for Sierra Leone reveals that the level of protection stemming from international criminal law is lower for female child soldiers than it is for male child soldiers. Certain “female” activities performed by children used in armed groups are excluded from the notion of “participate actively in hostilities”. Thus, they do not fall within the scope of the crime of using child soldiers. While activities connected to combat situations, espionage and guarding of military objects have been covered by the notion, cooking, nursing, and performance of other household chores have not. Offering a gender analysis of the application and interpretation of the crime of using children to participate actively in hostilities, this thesis suggests a gender-sensitive way of reading international criminal law. With respect to international human rights law, international humanitarian law and Article 21(3) of the Rome Statute, which articulates the importance of internationally recognized human rights as well as the principle of non-discrimination in relation to application and interpretation of the Statute, inclusion of typically “female” activities within the legal notion of “participate actively in hostilities” is advocated for.