On 14 March 2012, the International Criminal Court (‘ICC’) delivered its historic and much anticipated first judgment in the case of Prosecutor v Thomas Lubanga Dyilo. The Accused in the case was charged and convicted of conscripting and enlisting children under the age of 15 into armed forces or groups and using those children to participate actively in hostilities. While the ICC was not the first international court to have done so, having been beaten to this distinction by the Special Court for Sierra Leone (‘SCSL’), it is an important judgment nonetheless for providing some much needed clarification on the law. One of the more significant contributions of the Lubanga judgment was the recognition of the crime of ‘using’ children to participate actively in hostilities as an offense in its own right, distinct from the ‘recruitment’ crimes of conscripting or enlisting children into armed forces or groups. All three crimes are referred to in the single provision of Article 8(2)(e)(vii) of the Rome Statute (‘child soldiers provision’). The case is unique due to the Prosecution's attempt to run the novel argument that acts of sexual violence (rape, forced marriages and sexual slavery) by commanders against girls—primarily ‘child soldiers’ but also civilians—constituted the crime of using child soldiers.

Section 6.2 of this article begins with an overview of how the prosecution of Mr. Lubanga was undertaken and progressed. Notably, sexual violence came to attain prominence haphazardly and belatedly in the proceedings rather than by way of any deliberate case theory properly investigated, pleaded and particularized in the Document Containing the Charges from the outset. Bound by charges of conscription, enlistment and use of child soldiers as confirmed by the Pre-Trial Chamber, the Prosecution found itself in the difficult position of pursuing a sexual violence case with the blunt instrument of the child soldiers provision. Misconceptions in the SCSL, which saw the crime of use conflated with conscription/enlistment, were also repeated by the Prosecution in Lubanga.