Table of contents:
3.1. The perpetrator conscripted one or more persons into an armed force or group; OR
3.2. The perpetrator enlisted one or more persons in an armed force or group; OR
P.5.1. Evidence of the administrative act of putting the name of a person or persons on a list.
3.3. The perpetrator used one or more persons to participate actively in hostilities.
P.6.1. Evidence of the perpetrator using one or more persons for activities on the frontline.
P.6.2. Evidence of the perpetrator using one or more persons for scouting.
P.6.3. Evidence of the perpetrator using one or more persons for spying.
P.6.4. Evidence of the perpetrator using one or more persons for sabotaging.
P.6.5. Evidence of the perpetrator using one or more persons as decoys.
P.6.6. Evidence of the perpetrator using one or more persons as couriers.
P.6.7. Evidence of the perpetrator placing one or more persons on checkpoints.
P.6.8. Evidence of the perpetrator using one or more persons to kill the adversary.
P.6.9. Evidence of the perpetrator using one or more persons to rape.
P.6.10. Not required: Evidence that force was used.
P.7. Evidence of the perpetrator using one or more persons in a support function linked to combat.
P.7.1. Evidence of the perpetrator using one or more persons as a porter.
P.7.3. Evidence of the perpetrator using one or more persons to provide supplies.
P.7.4. Evidence of the perpetrator using one or more persons as a sentry.
P.7.5. Evidence of the perpetrator using one or more persons as a cook.
Element:
Art. 8(2) (e) (vii) mirrors art.8(2) (b) (vii), with the difference that in the case of armed conflicts of a non international character, the prohibition related to the conscription and enlistment of children extends to all armed forces (as opposed to national armed forces in cases of international conflicts). In order to qualify as an armed force, the group must show a minimum internal organization. However, it not necessary to show the existence of a chain of command to demonstrate the group was organized. Moreover, entry of one or more persons into recruitment campaigns, scout groups or institutions operated, supervised or funded by the armed forces but with an essentially civilian curriculum or purpose is not prohibited.
Michael Cottier, Article 8 in Otto Triffterer, ed, Commentary on the Rome Statute of the International Criminal Court (1999) paras. 305 - 307:
528See for a similar definition of the notion of armed forces in article 1 para 1 of the Second Add. Prot. ICRC Commentary, margin No. 4462.
Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court (2005) p. 470-471:
Michael Cottier, Article 8 in Otto Triffterer, ed, Commentary on the Rome Statute of the International Criminal Court (1999) para. 229:
In Prosecutor v. Hinga Norman [Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), Hinga Norman (SCSL-2004-14-AR72(E)), 31 May 2004], the Appeals Chamber of the Special Court for Sierra Leone held that the recruitment of child soldiers, namely the conscription, enlistment and use to participate actively in hostilities of children under fifteen, was a crime under customary law international law attracting individual criminal responsibility since at least November 1996. This represents the first time that the crime of child recruitment has been charged before an international court or tribunal. There is therefore no case law available on this crime at the moment. The ICC will benefit from the precedents that will be created at the Special Court for Sierra Leone and develop its own jurisprudence that will directly address the elements of this specific crime.
3.1. The perpetrator conscripted one or more persons into an armed force or group; OR
A. Legal source/authority and evidence:
404 To conscript is defined as to compel to military service by conscription, to enlist compulsorily, THE OXFORD ENGLISH DICTIONNARY 848 (Vol. III, reprint 1978), and as to force someone by law to serve in one of the armed forces, THE CAMBRIDGE INTERNATIONAL DICTIONARY 289 (1995).
A. Legal source/authority and evidence:
A. Legal source/authority and evidence:
UNICEF, Adult War, Child Soldiers: Voices of Children Involved in Armed Conflict in the East Asia and Pacific Region (2002), p. 24:
[FN22]. See Schuler, supra note 3, at 1 (explaining how RUF rebels spare childs life if child committed acts of violence). Rebels demanded an eight-year-old boy slit his fathers throat or face death along with his parents. Id. At his fathers request, the boy did as the rebels instructed. Id.
[B. Evidentiary comment:]
ICC, The Prosecutor v. Bosco Ntaganda , ICC-01/04-02/06, Decision on the Charges (PTC), 9 June 2014, para. 87:
"Children, including under the age of 15 years, were also abducted by UPC/FPLC soldiers from schools, streets or marketplaces. For example, in July or August 2002, witness P-0758, aged 13 at the time, was abducted by UPC/FPLC soldiers at a roadblock and taken to Lingo camp for training. She remained with the armed group until the arrival of the "Operation Artemis" contingent in July 2003. In August 2002, a boy aged 13 was recruited by force in or around Mudzipela by six UPC/FPLC soldiers and taken to Mandro training camp. On 8 November 2002, the UPC/FPLC entered the Ecole Primaire of Mudzipela and forcibly rounded up the entire fifth grade, approximately forty children, for military service. Further, on 15 February 2003, between fifty and sixty people, including children aged as young as 10, were taken by force from Ndrele market by UPC/FPLC soldiers, put in a truck, and sent to the training camp at Mont Awa. On 20 February 2003, a boy aged 12 was recruited in Mahagi-Port by a UPC/FPLC commander, while his mother resisted the recruitment. During the same month, a 14-year-old boy was recruited by force on the road to Mongbwalu market by Mr. Lubanga himself and six other soldiers, and sent to Mandro training camp."
A. Legal source/authority and evidence:
UNICEF, Adult War, Child Soldiers: Voices of Children Involved in Armed Conflict in the East Asia and Pacific Region (2002), p. 24:
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
UNICEF, Adult War, Child Soldiers: Voices of Children Involved in Armed Conflict in the East Asia and Pacific Region (2002), p. 24:
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
[FN22]. See Schuler, supra note 3, at 1 (explaining how RUF rebels spare childs life if child committed acts of violence). Rebels demanded an eight-year-old boy slit his fathers throat or face death along with his parents. Id. At his fathers request, the boy did as the rebels instructed. Id.
[FN23]. See Schuler, supra note 3, at 1. (explaining commanders belief that children make good soldiers because of impressionability). Olara Otunnu, the U.N. Special Representative for Children in Armed Conflicts, said that commanders desire children soldiers because rebels can easily mold then into a ruthless, unquestioning instrument. Id. By getting a child to commit one horrid act, rebel leaders know such a child will obey subsequent orders. See id.
[FN24]. See Brutal Child Army Grows Up, BBC News, May 10, 2000 (calling drug abuse key factor in conduct of RUF), at news.bbc.co.uk/2/hi/africa/7436840.stm. (last visited Feb. 14, 2003). Evidencing the abuse, various reports stated thousands of syringes lay outside the abandoned home of RUF leader Sankoh. Id.
[FN25]. See Schuler, supra note 3, at 1 (detailing account of rebel whose leader cut his arm and inserted cocaine direct into bloodstream). One rebel stated the cocaine gave [him] the will to fight. Id. With the drug-induced hot temper, rebels raided towns and shot anything that moved. Id.
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
UNICEF, Adult War, Child Soldiers: Voices of Children Involved in Armed Conflict in the East Asia and Pacific Region (2002), p. 25:
The Impact of Armed Conflict on Children, United Nations General Assembly, U.N. Doc. A/51/306.Add.1, 6 September 1996, p.6:
[B. Evidentiary comment:]
3.2. The perpetrator enlisted one or more persons in an armed force or group; OR
A. Legal source/authority and evidence:
Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, para. 4557:
The principle of non-recruitment also prohibits accepting voluntary enlistment.
A. Legal source/authority and evidence:
P.5.1. Evidence of the administrative act of putting the name of a person or persons on a list.
A. Legal source/authority and evidence:
Roy S. Lee, The International Criminal Court: The Making of the Rome Statute, p.118:
Michael Cottier, Article 8 in Otto Triffterer, ed, Commentary on the Rome Statute of the International Criminal Court (1999) para. 228 :
404 [ ]To enlist means to enrol on the list of a military body; to engage a soldier, THE OXFORD ENGLISH DICTIONNARY 191 (Vol. III, reprint 1978), and to (cause to) join something, esp. the armed forces, THE CAMBRIDGE INTERNATIONAL DICTIONNARY 459 (1995).
3.3. The perpetrator used one or more persons to participate actively in hostilities.
A. Legal source/authority and evidence:
Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court (2005), p. 378:
7 ICTR Judgment, The Prosecutor v. Jean Pail Akayesu, ICTR-96-T, para 629 (emphasis added).
A. Evidentiary comment:
P.6.1. Evidence of the perpetrator using one or more persons for activities on the frontline.
A. Legal source/authority and evidence:
Report of the Preparatory Committee on the Establishment of an International Criminal Court, A/CONE 183/2/Add.1 (14 April 1998), p.21:
The words using and participate have been adopted in order to cover both direct participation in combat and also active participation in military activities linked to combat [ ] use of children in a direct support function such as acting as bearers to take supplies to the front line, or activities at the front line itself, would be included in the terminology.
[B. Evidentiary comment:]
P.6.2. Evidence of the perpetrator using one or more persons for scouting.
P.6.3. Evidence of the perpetrator using one or more persons for spying.
P.6.4. Evidence of the perpetrator using one or more persons for sabotaging.
P.6.5. Evidence of the perpetrator using one or more persons as decoys.
P.6.6. Evidence of the perpetrator using one or more persons as couriers.
P.6.7. Evidence of the perpetrator placing one or more persons on checkpoints.
A. Legal source/authority and evidence:
53See, in particular, O.R. XV, pp. 65-69, CDDH/III/SR.45, paras. 11-31.
[B. Evidentiary comment:]
P.6.8. Evidence of the perpetrator using one or more persons to kill the adversary.
P.6.9. Evidence of the perpetrator using one or more persons to rape.
A. Legal source/authority and evidence:
[B. Evidentiary comment:]
P.6.10. Not required: Evidence that force was used.
A. Legal source/authority and evidence:
Michael Cottier, Article 8 in Otto Triffterer, ed, Commentary on the Rome Statute of the International Criminal Court (1999) paras. 232-233:
B. Evidentiary comment:
The simple acceptance of using one or more of these persons is sufficient. The prohibition does not extend to the participation of children under fifteen in hostilities upon their own volition unless their active participation is being used.
P.7. Evidence of the perpetrator using one or more persons in a support function linked to combat.
P.7.1. Evidence of the perpetrator using one or more persons as a porter.
A. Legal source/authority and evidence:
Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August, para. 4557:
53 See, in particular, O.R. XV, pp. 65-69, CDDH/III/SR.45, paras. 11-31.
The Impact of Armed Conflict on Children, United Nations General Assembly, U.N. Doc. A/51/306.Add.1, 6 September 1996, p.7:
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August, para. 4557:
53 See, in particular, O.R. XV, pp. 65-69, CDDH/III/SR.45, paras. 11-31.
C. Pilloud and J. S. Pictet, Art. 75 in Commentary on the Additional Protocols, no. 3187:
[B. Evidentiary comment:]
P.7.3. Evidence of the perpetrator using one or more persons to provide supplies.
A. Legal source/authority and evidence:
Report of the Preparatory Committee on the Establishment of an International Criminal Court, A/CONE 183/2/Add.1 (14 April 1998), p.21:
Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August, para. 4557:
53 See, in particular, O.R. XV, pp. 65-69, CDDH/III/SR.45, paras. 11-31.
C. Pilloud and J. S. Pictet, Art. 75 in Commentary on the Additional Protocols, no. 3187:
[B. Evidentiary comment:]
P.7.4. Evidence of the perpetrator using one or more persons as a sentry.
P.7.5. Evidence of the perpetrator using one or more persons as a cook.
A. Legal source/authority and evidence:
UNICEF, Adult War, Child Soldiers: Voices of Children Involved in Armed Conflict in the East Asia and Pacific Region (2002), p. 44:
[B. Evidentiary comment:]
