Ensuring Protection of Child Soldiers from Sexual Violence: Relevance of the Ntaganda Decision on the Confirmation of Charges in Narrowing the Gap

Ana Martin Beringola

Abstract


The protection of child soldiers from sexual violence has been very difficult to ensure in international justice. If child soldiers were considered to be “directly/actively” participating in hostilities, according to the principle of distinction between combatants and civilians, they lost humanitarian protection against attack, including from sexual violence. The Ntaganda Decision on the confirmation of charges of 2014 opens the door to get out of this catch-22 situation. It clarified that those subject to sexual violence “cannot be considered to have taken active part in hostilities during the specific time when they were subject to acts of sexual nature.” Thus, this interpretation of the standard “directly/actively” participating in hostilities has the potential to fill the gap and ensure child soldiers protection from sexual violence. This article explains why the Ntaganda finding of the Pre-Trial Chamber should be upheld: for its capacity to ensure protection to “all” child soldiers independently of their role, and its coherence with the child protection mandate established in the Rome Statute and in international humanitarian law. 


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Copyright (c) 2016 Ana Martin Beringola

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