Throughout treaty-making processes and turn-of-the-century international criminal tribunal decisions, scholars and judges alike determined that the terms “direct” and “active,” when referring to participation in hostilities, were synonymous. However, the International Criminal Court (“ICC”), in interpreting the Rome Statute in the Lubanga case, determined that they were not, creating disparity between interpretations of the same terms within International Criminal Law (“ICL”) and the Law of Armed Conflict (“LOAC”). Not only is the ICC’s interpretation legally wrong, it is also practically unworkable and distorts the well-established doctrine of DPH as defined in LOAC. Lubanga may have broadened protection for child soldiers, but also likely made those children more targetable under LOAC and the principle of distinction. The ramifications of this interpretation affect not only DPH and its future applications, both in courts and on the battlefield, but also fundamentally affect the relationship between ICL and LOAC. Lubanga is yet another unfortunate example of the ICC driving interpretive wedges between LOAC’s ex ante regulation of the battlefield and ICL’s ex post determinations in the courtroom.
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