A child is a person who does not have an individual legal personality (meaning he or she is not recognized as an independent person before the law). The protection and defense of children’s interests are therefore entrusted by law first and foremost to their parents and relatives and, in case of failure by them, to social and judicial services. The child’s protection must be provided by the family or, in the absence of a family, by society. A child is an individual who has specific needs so as to be able to develop normally, both physically and mentally. International and national law devotes part of its guarantees to protecting children’s regular development, within the context of family and society.
Children are greatly affected by situations of conflict, as well as situations of extreme poverty that frustrate many governments’ social programs. In such situations, UNICEF and nongovernmental humanitarian actors play an important role in elaborating concrete relief actions. Such actions should not take place in a legal vacuum that risks increasing children’s vulnerability to different kinds of abuse. Instead, relief actions should seek to restore or reinforce a minimum legal framework of protection and family capacity.
Children make up 40 percent of the civilian victims in conflicts and over 50 percent of the refugees and internally displaced persons. Their specific vulnerability puts them at higher risk to be deprived of basic needs such as food, water, and medical attention and otherwise abused.
The protection of children cannot be ensured by increasing their self-sufficiency, as is the case with adults. Instead, external systems of protection must be developed that protect the child from violations he or she might suffer because of the social or family environment.
All actors in society are hence directly responsible for ensuring the protection of children. In cases of emergency or exclusion, this includes humanitarian actors. Minor and c hild are not synonymous legal terms. National laws take into account that the needs of children vary depending on their age, and they set a different minimum legal age for purposes such as employment, marriage, testifying in court, criminal liability, imprisonment, and recruitment in armies.
Most provisions of international law refer to “children” under a specific age instead of “minors.” In general, international law considers children to be persons under eighteen; however, it provides certain specific provisions for other ages. For instance, it is expressly forbidden to recruit children under the age of fifteen into the armed forces.
In times of conflict, international humanitarian law gives children both general protection, as civilian persons taking no part in hostilities, and special protection, as particularly vulnerable and unarmed individuals. They have the right to specific material assistance and to strengthened protection. International humanitarian law usually does not speak of “minors” because the age at which a child reaches legal majority varies from one country to another.
The Geneva Conventions generally consider children to be all persons under the age of eighteen; however, they enumerate additional specific rights and guarantees for newborn infants and children under twelve and under fifteen. Humanitarian organizations often pay additional attention to children under five, through targeted medical or nutritional programs.
These rights have become norms of customary law; Rule 135 of the 2005 ICRC customary IHL study prescribes that “children affected by armed conflict are entitled to special respect and protection” in international and non-international armed conflicts.
The Convention on the Rights of the Child (CRC)—adopted 20 November 1989 by the General Assembly of the UN—defines and aims to protect the rights of children at all other times, when humanitarian law is not directly applicable (in times of peace, situations of internal disturbances and tensions). The CRC defines children as “every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier” (Art. 1). It entered into force in 1990 and currently has 195 States Parties. This Convention may not be used directly by children, but it lays out children’s rights that are meant to be incorporated into national legislation. Its Article 38 provides for protection in times of armed conflict by referring States Parties to humanitarian law, which they undertake to respect.
On 25 May 2000, the UN General Assembly adopted two Optional Protocols to the Convention on the Rights of the Child (A/RES/54/263), one on the involvement of children in armed conflicts and one on the sale of children, child prostitution, and child pornography. Both entered into force in February 2002. As of June 2015, 159 States have ratified the Protocol on the involvement of children in armed conflict while 169 have ratified the one on the sale of children, child prostitution, and child pornography. (See below for further details on the two Optional Protocols.)
Protecting Children in Times of Conflict: The Geneva Conventions and Additional Protocols
The 1949 Geneva Conventions and their 1977 Additional Protocols establish that “children shall be the object of special respect and shall be protected against any form of indecent assault. The parties to the conflict shall provide them with the care and aid they require” (API Art. 77). They center the provisions for the protection of children on several main objectives—namely sheltering them from hostilities; maintaining family unity; and ensuring the necessary care, relief, or protection for those caught in hostilities. The rules established for international armed conflict are more detailed than those for internal conflicts, but nothing prevents relief agencies from using the former as a framework for their work in situations of internal conflict.
Sheltering Children from Hostilities
As soon as hostilities break out, parties to a conflict may establish hospitals and safety zones and localities to protect wounded, sick, and aged persons; children under fifteen; pregnant women; and mothers of children under seven (GCIV Art. 14). ▸ Protected areas and zones
In case foreign persons are present on the territory of a party to the conflict, those under the age of fifteen, pregnant women, and mothers of children under seven must benefit from the same preferential treatment as the nationals of the State concerned (GCIV Art. 38.5).
In an occupied territory, the Occupying Power must facilitate the proper working of all institutions devoted to the care and education of children. It may not, under any circumstances, change their personal status or enlist them in formations or organizations subordinate to it. Should the local institutions be inadequate for the purpose, the Occupying Power shall make arrangements for the care and education of children who are orphaned or separated from their parents, if possible by persons of their own nationality, language, and religion.
The Occupying Power may not hinder the application of any preferential measures with regard to food, medical care, and protection from the effects of war for children under fifteen, expectant mothers, and mothers of children under seven (GCIV Art. 50). The Occupying Power may not compel individuals under the age of eighteen to work (GCIV Art. 51).
The Conventions and Protocols contain provisions for the temporary evacuation of children if compelling security reasons exist. This includes removing them from besieged or encircled areas. Such evacuation must follow precise organizational and security rules and methods so as not to jeopardize the children’s future in any way (API Art. 78, APII Art. 4.3). ▸ Evacuation
Specific Care and Protection for Children in Times of Conflict
- Children have a right, overall, to the protection of their cultural environment, their education, and the exercise of their religion (GCIV Arts. 24, 50).
- Specific rules have been established to regulate all conditions of adoption or evacuation of children, so as to avoid the kind of fraud and abuse that may occur in situations as disruptive as wars (API Art. 78). Though these rules legally apply only to international armed conflict, nothing prevents relief agencies from using them as a framework for their work in situations of non-international armed conflict. ▸ Adoption
- Children shall be the object of special respect and shall be protected against any form of indecent assault. The parties to the conflict must provide them with the care and aid they require, whether because of their age or for any other reason (API Art. 77.1).
- Pregnant women and newborn babies come under the category of “wounded persons” and hence benefit from the same protection provided for the wounded and sick under humanitarian law (API Art. 8).
- In the distribution of relief supplies, priority shall be given to persons who must be accorded privileged treatment or special protection, such as children, expectant mothers, maternity cases, and nursing mothers (GCIV Arts. 38.5, 50; API Art. 70.1).
- In besieged areas or occupied territories, the States party to the Conventions must permit the free passage of all supplies of essential foodstuffs, clothing, and tonics intended for children under fifteen and expectant and nursing mothers (GCIV Art. 23).
- Children held in detention: The Detaining Power must ensure that they are:
° lodged with their family, in the same place of internment (GCIV Art. 82, API Art. 75.5);
° given additional food, in proportion to their physiological needs (GCIV Art. 89);
° allowed to attend school, either within the place of internment or outside (GCIV Art. 94);
° released in priority, if possible even before the end of hostilities (GCIV Art. 132).
Maintaining the Family Unit
States are under the obligation to facilitate the exchange of family correspondence, including for dispersed families. In any case, States party to a conflict must never hinder such correspondence. All persons in the territory of a party to the conflict, or in an occupied territory, shall be enabled to give news of a strictly personal nature to members of their families, wherever they may be, and to receive news from them.
If, as a result of circumstances, it becomes difficult or impossible to exchange family correspondence, the parties to the conflict concerned shall apply to a neutral intermediary, such as the ICRC’s Central Tracing Agency, to determine the best way to permit families to communicate among themselves. If the parties to the conflict consider it necessary to restrict family correspondence, they may at most restrict such communication to the use of standard forms containing twenty-five freely chosen words and limit the number sent to one each month (GCIV Art. 25).
The parties to the conflict must facilitate the reunion of dispersed families, and they must encourage the work of organizations engaged in this task (GCIV Art. 26, API Art. 74, and APII Art. 4.3.b). They also commit to establishing their Information Bureaus and Agencies (GCIV Art. 136). ▸ Central Tracing Agency ▸ Family ▸ Family reunification
Children in Armed Forces
General Prohibition on Recruitment of Children
Children under the age of fifteen may not be recruited into armed forces (API Art. 77.2, CRC Art. 38.3). If parties to the conflict do incorporate juveniles between the ages of fifteen and eighteen into their armed forces, they must give priority to the oldest.
The prohibition on recruitment of children under the age of fifteen has by now acquired a customary international law status (see, for example, Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, S/2000/915, 4 October 2000, para. 17). Rule 136 of the ICRC customary IHL study prescribes that in international and non-international armed conflicts, “children must not be recruited into armed forces or armed groups.” The use of “must” creates an obligation for armed forces, both regular forces and organized armed groups, not to recruit children in their forces, whereas the Additional Protocols only prescribe that parties to the conflict shall take “all possible measures” not to recruit child soldiers. Besides, Rule 137 of the ICRC customary IHL study states that “children must not be allowed to take part in hostilities.”
The Statute of the International Criminal Court (ICC) adopted on 17 July 1998, entered into force on 1 July 2002, specifies that, in both international and non-international armed conflicts, “conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities” is a war crime (Arts. 8.2.b.xxvi and 8.2.e.vii of the ICC Statute). Under certain conditions, the Court has jurisdiction to prosecute the perpetrators of such crimes (Art. 8.2.b.xxvi; Art. 8.2.e.vii).
An Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts was adopted by the UN General Assembly on 25 May 2000. It raises the age at which participation in armed conflicts is permitted from fifteen to eighteen and establishes a ban on compulsory recruitment below the age of eighteen. The Optional Protocol also requires States to make a declaration, upon ratification or adhesion, regarding the age at which national forces will permit voluntary recruitment, as well as specify the steps they will take to ensure that such recruitment is never forced or coerced. However, criminal prosecution of the prohibition on recruitment of children remains limited at the international level to the case of child soldier enrollment under fifteen.
The Dilemma of the Criminal Responsibility of Children for Crimes under International Law
The perpetration of war crimes by child soldiers poses serious problems in terms of individual criminal responsibility. If recent international efforts have focused on holding accountable those recruiting child soldiers, the issue of the criminal responsibility of child soldiers themselves has also arisen in many countries and, more particularly, in Sierra Leone. When it comes to the criminal responsibility of children for international crimes, the question of age appears to be particularly sensitive. An examination of the various international criminal institutions can, however, give some indications on where the line is to be drawn.
The drafting of the Statute of the Special Court for Sierra Leone crystallized considerations on the minimum age of criminal responsibility. Indeed, the statutes of international criminal tribunals drafted previously had either ignored or avoided the issue. According to Article 26 of the Rome Statute, the Court has no jurisdiction to try any individual who was under the age of eighteen at the time of the alleged commission of the offence. By doing so, the ICC statute leaves the choices regarding prosecution of under-eighteen war criminals to national courts. In a similar manner, none of the two international ad hoc tribunals established by the UN Security Council, for the former Yugoslavia and Rwanda, has indicted any person below the age of eighteen.
However, with regard to the Sierra Leonean context, this issue could neither be ignored nor avoided. Many child soldiers, most of them forcibly recruited, had indeed taken part in hostilities, committing serious crimes. Both the Government of Sierra Leone and the civil society thus expressed wishes to see a process of accountability for child combatants. The treatment of juvenile offenders has proven to be one of the crucial issues of the negotiations between the UN and Sierra Leone. The parties agreed that the Special Court should have jurisdiction over persons who were fifteen years of age and over at the time of the alleged commission of the crime, thus filling the gap left open in the ICC Statute. However, it was agreed that children between fifteen and seventeen years of age must be tried in accordance with the internationally recognized standards of juvenile justice and may not be punished with imprisonment. In practical terms, Article 7 of the Statute provides that, at all stages of the proceedings, juvenile offenders (i.e., accused persons under the age of eighteen) will be treated “with dignity and a sense of worth, taking into account the desirability of promoting their rehabilitation, reintegration into and assumption of a constructive role in society.” Throughout its text, the Statute incorporates international standards of juvenile justice and introduces comprehensive guarantees to protect juvenile offenders, including the constitution of a juvenile chamber, protective measures to ensure the privacy of juveniles, and a special sentencing regime. The Special Court cannot imprison children below the age of eighteen and must always consider their release as a priority (Art. 19).
It is, however, worth mentioning that provisions on the judgment of juvenile offenders were included in the Statute with the idea that such judgments would be unlikely. Unsurprisingly, the prosecutor stated that, as a matter of policy, he would not prosecute any person for crimes committed while a child. Such cases were therefore listened to by the Truth and Reconciliation Commission to avoid any breach of their most fundamental rights while avoiding outright impunity.
The emergence of a consensus on the age of the criminal responsibility has not been without difficulties. However, it is now recognized that children below the age of eighteen at the time of the alleged commission of the crime should not be prosecuted for war crimes and crimes against humanity by international courts.
Provisions for Child Soldiers Who Are Prisoners of War
If, nonetheless, children under fifteen do participate in hostilities and fall into the power of an adverse party, they must continue to benefit from the special protection foreseen for children (API Art. 77), whether they are recognized as prisoners of war or not.
Guarantees for Children in International Armed Conflicts
Children arrested, detained, or interned for reasons related to armed conflict must benefit from special guarantees due to their age, their specific psychological and physiological needs, and the fact that they may not—in general criminal law—be held responsible for their crimes. These guarantees are protected in humanitarian law by the following provisions:
- Even in the case of detention, priority shall be given to children (and other persons in need of special protection) in the distribution of relief supplies (GCIV Arts. 23, 50; API Art. 70).
- The treatment of accused or detained persons shall take into consideration the special treatment to which children are entitled (GCIV Art. 76). Article 50 of the Fourth Geneva Convention establishes the general regime of protection for children. Other provisions forbid recruiting children into groups dependent on the Detaining Power and establish that they must be given the necessary material care and education. States are also under the obligation to provide them with the privileged treatment foreseen for them with regard to the distribution of food, medical care, and shelter from the effects of war.
- If arrested, detained, or interned for reasons related to the armed conflict, children shall be held in quarters separate from those of adults, except where families are accommodated together (API Art. 77.4).
- The death penalty may not be applied to children who were under the age of eighteen at the time the offense was committed (GCIV Art. 68, API Art. 77.5). ▸ Death penalty
Guarantees for Children in Noninternational Armed Conflicts
In situations of internal armed conflict, a minimum set of rights exists that must be protected for children. These are derived from Common Article 3 to the four Geneva Conventions and the provisions relating to children in Additional Protocol II of 1977:
Common Article 3 establishes that, as persons taking no part in the hostilities, children must “in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria.” To this end, certain acts remain prohibited at any time and in any place whatsoever. These include violence to life and person, cruel treatment and torture, outrages on personal dignity such as humiliating and degrading treatment, the taking of hostages, and the passing of sentences without previous judgment pronounced by a regularly constituted court. ▸ Fundamental guarantees
Article 4.3 of Additional Protocol II posits that: “Children shall be provided with the care and aid they require, and in particular:
- they shall receive an education, including religious and moral education, in keeping with the wishes of their parents, or in the absence of parents, of those responsible for their care;
- all appropriate steps shall be taken to facilitate the reunion of families temporarily separated;
- children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities;
- the special protection provided by this Article to children who have not attained the age of fifteen years shall remain applicable to them if they take a direct part in hostilities despite the provisions of subparagraph (c) and are captured;
- measures shall be taken, if necessary, and whenever possible with the consent of their parents or persons who by law or custom are primarily responsible for their care, to remove children temporarily from the area in which hostilities are taking place to a safer area within the country and ensure that they are accompanied by persons responsible for their safety and well-being.”
Furthermore, the death penalty shall not be pronounced on persons who were under the age of eighteen years at the time of the offense and shall not be carried out on pregnant women or mothers of young children (APII Art. 6.4). ▸ Death penalty
Situations Other Than Armed Conflict
The Convention on the Rights of the Child
In times other than during armed conflicts (either peace or internal tensions), the Convention on the Rights of the Child (CRC) establishes the overall rights of children recognized by the 193 States Parties to the Convention. The government on which the child depends is responsible for ensuring the respect for these rights. Their implementation depends on the government adopting legislation in conformity with the Convention.
A Committee on the Rights of the Child was created per Articles 43 to 45 of the CRC. It is made up of ten experts—elected to four-year terms by the States Parties—and promotes and monitors government initiatives with respect to their obligations under the Convention. States Parties undertake to submit reports every five years on the measures they have adopted to enact the Convention. When it examines the reports, the Committee may invite UNICEF and any other competent bodies to provide expert advice on the implementation of the CRC in specific areas (Art. 45.a). This provision enables NGOs to participate in the debate on the rights of the child in a given country. ▸ Committee on the Rights of the Child
Throughout its fifty-four articles, the CRC specifies the principal rules and standards that must be followed or respected in order to protect the rights of children:
- the best interests of the child must be the primary consideration driving all decisions and actions concerning children (Art. 3);
- States are under the obligation to adopt all legislative, administrative, and other measures for the implementation of the rights recognized in the Convention (Art. 4);
- the right to life, and to the survival and development of the child (Art. 6);
- the right to an identity and a nationality, registered and recognized before the law (Arts. 7, 8);
- respect for the family environment (Arts. 9–11);
- freedom of expression—in particular before judicial and administrative institutions—as well as freedom of thought, conscience, religion, and association (Arts. 12–15);
- respect for the parents as having primary responsibility for the upbringing of each child, with his or her best interests as their main concern (Art. 18);
- protection from any form of maltreatment—including all forms of physical or mental violence, abuse, exploitation, or neglect—and States Parties undertake to implement all appropriate legislative, administrative, social, and educational measures to this effect (Art. 19);
- rights in case of adoption (Art. 21); ▸ Adoption
- rights of child refugees (Art. 22); ▸ Refugees
- rights of mentally or physically disabled children (Art. 23);
- the right to the enjoyment of the highest attainable standard of health and the duties of States to make the necessary provisions (Arts. 23, 24);
- the right to the periodic review of a child’s placement for his or her treatment (Art. 25);
- rights related to education (Arts. 28–31);
- protection from economic exploitation or any work that may be detrimental to the child’s education or health (Art. 32);
- protection from the illicit use and trafficking of drugs (Art. 33);
- protection from sexual exploitation (Art. 34);
- protection from the abduction, sale, or traffic of children or any form of prejudicial exploitation (Arts. 35, 36);
- protection from torture or other cruel, inhuman, or degrading treatment or punishment (Art. 37);
- rights of children deprived of liberty and other due process guarantees (Arts. 37, 40, and 41); ▸ Detention ▸ Judicial guarantees
- protection in case of armed conflict: States Parties undertake to respect the rules of international humanitarian law (Art. 38).
Two Optional Protocols were adopted on 25 May 2000 to increase the protection of children from involvement in armed conflict and from sexual exploitation. The Optional Protocol on the involvement of children in armed conflict establishes the minimum age for compulsory recruitment at eighteen and requires States to do everything they can to prevent individuals under the age of eighteen from taking a direct part in hostilities. After receiving the first ten ratifications needed for its entry into force, it became legally binding on 12 February 2002. The Optional Protocol on the sale of children, child prostitution, and child pornography draws special attention to the criminalization of these serious violations of children’s rights; it entered into force on 18 January 2002.
Standards Regarding Children Deprived of Their Liberty
The General Assembly of the UN adopted a resolution on the Standard Minimum Rules for the Administration of Juvenile Justice in November 1985 (GA Resolution 40/33). These Standard Minimum Rules, known as the Beijing Rules, take into account diverse national settings and legal structures, reflect the aims and spirit of juvenile justice, and set out desirable principles and practice for the administration of justice for juveniles. They represent the minimum conditions internationally accepted for the treatment of juveniles who come into conflict with the law. The Beijing Rules state that the aims of juvenile justice are to enhance the well-being of the juvenile and to ensure that any reaction to juvenile offenders shall always be a disposition of last resort and for the minimum necessary period, and call for the promotion of research, planning, policy formulation, and evaluation. The issue of juvenile justice delinquency continued to attract international attention, and, in 1990, the General assembly adopted the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines) and the United Nations Rules for the Protection of Juveniles Deprived of Their Liberty (the Havana Rules) (respectively, Resolutions 45/112 and 45/113 of 14 December 1990) to reinforce the Beijing Rules. ▸ Detention
Regional and National Protection
There have also been some efforts made at the regional level to reinforce protection for the rights of children, such as the adoption in 1990 of the African Charter on the Rights and Welfare of the Child (CAB/LEG/24.9/49) by the African Union. This Convention entered into force on 29 November 1999. Among the human rights obligations, States Parties undertake to respect and ensure respect for rules of international humanitarian law applicable in armed conflicts, including situations of internal armed conflicts and tensions that concern children, and to take all feasible measures to ensure the protection and care of children who are affected by armed conflicts, including refugees. In July 2001, the African Committee of Experts on the Rights and Welfare of the Child was created to promote and protect the rights established under this Charter. The Committee is composed of eleven members and meets twice a year, generally in May and November in Addis Abeba, Ethiopia. The Committee is accountable before the African Union Assembly of Heads of State every two years. The States Parties shall submit an initial report to the Committee within two years after the ratification of the Charter and every three years thereafter.
Some countries have special national laws that enable the prosecution of persons who, while in a different country, commit sexual crimes against minors. Such trials may be carried out before the courts of the State of which the accused is a national, or before the courts of the State where the acts were committed. Such laws are adopted in the context of the fight against pedophilia and sex tourism. ▸ Rape
▸ Adoption ▸ Central Tracing Agency ▸ Committee on the Rights of the Child ▸ Detention ▸ Evacuation ▸ Family ▸ Family reunification ▸ International Criminal Court ▸ Internment ▸ Judicial guarantees ▸ Minors ▸ Protected persons ▸ Rape ▸ Red Cross and the Red Crescent ▸ UNICEF ▸ Women
- Temporal Jurisdiction of the Special Court for Sierra Leone to Try Individuals Guilty of Recruiting Child Soldiers
In the Norman Case , the Special Court Prosecutor charged Sierra Leonean politician Sam Hinga Norman with war crimes and crimes against humanity, including the recruitment of child soldiers. Norman argued that the Special Court could not try him for recruiting child soldiers as it was not a crime under international law during the years that the Prosecutor cited, beginning with the Special Court’s jurisdiction in 1996. The Special Court Appeals Chamber, however, found that a prohibition on child recruitment had become international custom and law even before 1996, citing the Convention on the Rights of the Child, the Geneva Convention, and the African Charter on the Rights and Welfare of the Child among other legal instruments. Even though none of these Conventions expressly prohibited the recruitment of child soldiers in 1996, the Chamber noted that “a norm need not be expressly stated in an international convention for it to crystallize as a crime under customary international law” ( Prosecutor v. Sam Hinga Norman , Decision on Preliminary Motion Based on Lack of Jurisdiction [Child Recruitment], 31 May 2004, para. 38). The Chamber noted that the protection of children is a fundamental guarantee; therefore, violating that guarantee by recruiting child soldiers resulted in individual criminal responsibility. Following on this ruling, the charges against Norman for recruiting child soldiers could stand, and proceedings against him were allowed to continue.
In 2007, the Special Court for Sierra Leone (SCSL) was the first international criminal court to try individuals for the recruitment and conscription of children under fifteen into armed forces or armed groups. On 19 July 2007, Alex Tamba Brima, Brima Bazzy Kamara, and Santigie Borbor Kanu, all former officials of the Armed Forces Revolutionary Council, a rebel group backed by former Liberian president Charles Taylor, were accused of eleven charges by the SCSL, including serious violations of international humanitarian law for the recruitment and conscription of children under fifteen in armed conflict. In the opinion of the Trial Chamber (Judgment, 20 June 2007), the use of children as combatants in armed conflict is considered a serious violation of international humanitarian law (an act punishable under Art. 4.c of the Statute of the SCSL).
On 18 May 2012, the Trial Chamber II of the SCSL found Charles Taylor guilty for all the charges against him, including the planning of conscripting and enlisting of child soldiers into the armed forces and the use of children in hostilities, punishable under Article 4.c of the Statute (Count 9) ( Prosecutor v. Charles Ghankay Taylor , Judgment of 18 May 2012).
- The Forced Recruitment of Child Soldiers as a War Crime: The Jurisprudence of the ICC
In front of the ICC, the charge of forced recruitment of child soldiers has been retained already against seven indicted persons in cases regarding the Democratic Republic of Congo (DRC) and Uganda.
With regard to the DRC, the trial of Congolese militia leader Thomas Lubanga, which began on 26 January 2009, is the first ICC trial in which the forced recruitment of child soldiers, defined as children under fifteen years old, is being prosecuted as a war crime. In order to establish the guilt of Thomas Lubanga, the Court based, inter alia, on the principle of superior responsibility, which states that the responsibility in the case of conscripting and enlisting children under fifteen years in the armed forces or armed groups must weigh on superiors as decision makers who hold effective control over the minors in question. On 14 March 2012, Thomas Lubanga was recognized guilty of all the charges against him, including forced recruitment of child soldiers. In its judgment, the Trial Chamber held that the offence of using children under the age of fifteen to participate actively in hostilities includes a wide range of activities, ranging from the use of weapons on the front line (direct participation) to support duties (indirect participation). Thus, the Court stated that as long as the child is exposed as a potential target, and although he is absent from the immediate scene of the hostilities, it is admitted that he participates actively in the hostilities ( Prosecutor v. Thomas Lubanga Dyilo , Judgment of 14 March 2012, para. 628).
The case of Bosco Ntaganda, Germain Katanga, and Matthieu Ngudjolo Chui is also related to child soldiers’ recruitment in the DRC. On 26 September 2008, ICC Pre-Trial Chamber I confirmed seven charges of war crimes and three counts of crimes against humanity against Germain Katanga and Matthieu Ngudjolo Chui, including using children under the age of fifteen to take active part in the hostilities. The trial in the case of The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui started on 24 November 2009.
With regard to the situation in Uganda, Joseph Kony, Vincent Otti, and Okot Odhiambo are charged with enlisting by force child soldiers and using them to participate actively in hostilities. The case ( Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo, and Dominic Ongwen ) is currently being heard before Pre-Trial Chamber II and warrants of arrest have been issued against the five top members of the Lord’s Resistance Army. Following the confirmation of the death of Mr. Lukwiya, the proceedings against him have been terminated; the four remaining suspects are still at large.
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———. “Paris Commitments to Protect Children from Unlawful Recruitment by Armed Forces or Armed Groups.” 2007. Available at http://www.unicef.org/spanish/protection/files/pariscommitments.pdf .
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