Sexual Violence Against Children under Fifteen Years in the Case Lubanga: Critical Analysis and a Proposed Solution

One of the most controversial issues that the Pre-Trial Chamber I of the International Criminal Court had to decide in their judgment against Thomas Lubanga Dyilo was the legal treatment of the acts of sexual violence committed during the armed conflict of Ituri. This was a challenging aspect because the Prosecutor had previously decided not to present charges based on sex crimes. On the contrary, he mostly focused his prosecutorial strategy on the war crimes of conscripting, enlisting children under the age of fifteen years or using them to participate actively in hostilities. Facing that situation, the majority of the Trial Chamber I decided not to analyse the issue, while judge Elizabeth Odio Benito took up this point and considered that acts of sexual violence constitute an active participation in hostilities. In this essay I will critically analyse both opinions with the aim of offering an alternative explanation. The latter could be read as follows: despite the fact that acts of sexual violence were not included in the charges, they are covered by the conducts of conscripting or enlisting.