Expansive and inclusive definitions of child soldiering crimes – and why girl soldiers deserve special attention – will likely be the focus of today’s testimony as the trial of Congolese militia leader, Thomas Lubanga Dyilo, starts up again at the International Criminal Court today after a six month long hiatus.

Mr. Lubanga has pleaded not guilty to war crimes charges of “Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.” Mr. Lubanga is also expected to appear in court today.

The person taking the stand, however, will be Radhika Coomaraswamy, the UN special representative on children and armed conflict, who appears today at the Trial judges’ request as an expert witness. She is expected to expand on her March 2008 submission to the Trial Chamber in which she argues for an understanding of the crimes of enlisting, conscripting and using child soldiers which provides the greatest possible coverage and protection for children, and which recognizes the particular plight and invisibility of girl soldiers when it comes to punishing the crime.

As background, here is an overview of her 10-page brief (which is available in full here:  http://www.un.org/children/conflict/_documents/AmicuscuriaeICCLubanga.pdf):

Ms. Coomaraswamy’s brief covers two questions:

• 1. the definition of conscripting or enlisting children, and how any distinction between the two might be approached
  2. with a specific focus on girl children, the interpretation of the term “using them to participate actively in hostilities”.

In turning to the definition question, Ms. Coomaraswamy notes the written commentary to the crimes which emerged after the Rome Conference where the ICC’s Statute was finalized. Both “conscription” and “enlistment” should be defined ordinarily, meaning:

“Conscription refers to the compulsory entry into the armed forces. Enlistment….refers to the generally voluntary act of joining armed forces by enrolment, typically on the ‘list’ of a military body or by engagement indicating membership and incorporation in the forces.”

Yet Ms. Coomaraswamy encourages the Trial Chamber to take a different approach, and follow the lead of another internationalized criminal court – the Special Court for Sierra Leone (SCSL), which is currently trying former Liberian President, Charles Taylor – in its formulation of the crimes.

The SCSL Trial Chamber in the AFRC case argued for “conscription” to include coercive acts, such as “abductions and forced recruitment by an armed group against children” for the purpose of using them to participate actively in hostilities.  Enlistment, meanwhile, entailed “accepting and enrolling individuals when they volunteer to join an armed force.”

The crucial difference between the two is that the SCSL definition, Ms Coomaraswamy argues, better takes into account contemporary forms of warfare, where armed factions may not be acting on behalf of a State when they conscript children – and also recognizes that children can be “enlisted” through more “informal means” which may not involve an “actual list.”

Regardless of which interpretation of the crimes is taken, a child’s consent is not a valid defense to any of the child soldier crimes.  All “voluntary” acts are rendered legally irrelevant if the child is younger that age 15 years. Neither is there a defense which rests on a “best interests of the child” argument.  “Recruitment is per se against the best interest of the child,” Ms. Coomaraswamy states.

She also warns the court that it is sometimes hard to tell the difference between a child who is conscripted and one who enlists. “The recruitment and enlistment of children in the DRC is not always based on abduction and the brute use of force.  It also takes place in the context of poverty, ethnic rivalry and ideological motivation.” For many children, she argues, even the most “voluntary” of acts are taken “in a desperate attempt to survive by children” who often have limited options – including the loss of family or community protection during war.

“The line between voluntary and forced recruitment is therefore not only legally irrelevant but practically superficial in the context of children in armed conflict,” Ms. Coomaraswamy argues.

She asks the court to consider the difficulty in parsing the two types of crimes – conscription and enlistment – and when it determines sentences proportionate to these crimes.

In short, she appears to argue that the two are of equal gravity. She notes the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (which the DRC ratified in 2004) which does not make a distinction between the two kinds of recruitment: “Armed groups….should not, under any circumstances, recruit….persons under the age of 18 years.”

When turning to the interpretation of “using them to participate actively in hostilities,” Ms. Coomaraswamy encourages the Trial Chamber to take a different view than that of their colleagues in the Pre-Trial Chamber in the Lubanga case.

The Pre-Trial Chamber, she said, had tried to draw a “bright line” between those children undertaking such tasks (active military combat, spying, scouts, sabotage, acting as decoys or bodyguards) that would allow them to be seen as being used to participate actively in hostilities — and those whose tasks would exclude them from falling into this category because they were “manifestly without connection to the hostilities.”   Falling into the latter category were tasks such as “food delivery and domestic help in an officer’s married accommodation.”

Any attempt to draw this “bright line,” Ms Coomaraswamy said, was “ill-conceived” and “threatens to exclude a great number of child soldiers – particularly girl soldiers – from coverage under the using crime.”

Instead, the relevant question for the Trial Chamber to ask itself was this:  did the child’s participation serve an essential support function to the armed group during conflict?  Again, she refers to the SCSL’s jurisprudence in the AFRC Trial Chamber’s judgment of June 2007: “Using children to participate actively in the hostilities encompasses putting their lives directly at risk in combat….[a]ny labour or support that gives effect to, or helps maintain, operations in a conflict constitutes active participation.” Ms. Coomaraswamy further gives examples of tasks that would fall under the “essential support function” category – including: “cooks, porters, nurses, spies, messengers, administrators, translators, radio operators, medical assistants, public information workers, youth camp leaders, and girls or boys who are used for sexual purposes.”

Indeed, she argues strongly for the Trial Chamber to “deliberately include any sexual acts perpetrated, in particular against girls, within its understanding of the “using” crime.”  During war, she says, “the use of girl children in particular includes sexual violence.”

In a plea which the ICC Prosecutor, Luis Moreno Ocampo, himself echoed in his opening statement in January 2009, Ms. Coomaraswamy concludes her submission with the need to make girls visible when it comes to counting – and re-integrating – child soldiers back into civilian life.

“Girl combatants are often invisible: Because they are also wives and domestic aides, they either slip away or are not brought forward for DDR programs.  Commanders prefer to ‘keep their women,’ who often father their children, and even if the girls are combatants, they are not released with the rest.  Their complicated status makes them particularly vulnerable. They are recruited as child soldiers and sex slaves but are invisible when it comes to the counting…..The actual experience of children in the DRC conflicts requires a more inclusive interpretation.”

Today’s testimony by Ms. Coomaraswamy, then, should see a powerful argument for the Trial Chamber to recognize both the contextual reality of children when they are recruited into armed forces, and the need to make visible the girl soldiers when considering these crimes.