International criminal law; child recruitment; Rome Statute
Résumé :
[en] Although children have always participated in armed conflict, over the past few decades their recruitment and use as child soldiers has become a matter of increasing international concern. This concern has manifested itself in several ways. There has been a concerted effort to strengthen the legal standards restricting children's recruitment into armed forces and groups and their participation in hostilities, and an increased involvement by the political organs of the United Nations in monitoring compliance with the rules. In addition, however, there has been a move to criminalisation; that is, to subject individuals who violate the international rules governing the recruitment and use of child soldiers to criminal sanction.
The most significant result of this last development has been the criminalisation of child recruitment in the Rome Statute of the International Criminal Court. Indeed, the first defendant to appear before the Court has been charged exclusively with child recruitment. Despite this, however, uncertainties remain about the definition of the crime. This article seeks to analyse the relevant provisions in the Rome Statute to elucidate better their meaning.
However, it also argues that the specific crime of child recruitment cannot be viewed in isolation. Children suffer from other violations of their rights in armed conflicts, which the Court should also prosecute. What is in the best interests of child victims and witnesses needs to be considered at all stages of the criminal process. The issues that arise concern the Office of the Prosecutor and the Registry as much as Chambers, requiring all of the organs of the Court to exercise judgment to ensure justice is done both to the accused and to the alleged child victims of their crimes.
Disciplines :
Droit européen & international
Auteur, co-auteur :
HAPPOLD, Matthew ; University of Luxembourg > Faculty of Law, Economics and Finance (FDEF) > Law Research Unit
Co-auteurs externes :
no
Langue du document :
Anglais
Titre :
Child Recruitment as a Crime under the Rome Statute of the International Criminal Court
Date de publication/diffusion :
2009
Titre de l'ouvrage principal :
The Legal Regime of the International Criminal Court: Essays in Honour of Professor Igor Blishchenko
This chapter will follow the convention of defining as children all persons under 18 years of age. See Article 1 of the Convention on the Rights of the Child, 1577 UNTS 3 (1989).
Recent discussions of children's participation in armed conf lict include Rachel Brett and Irma Specht, Young Soldiers: Why They Choose to Fight (2004);
Alcinda Honwana, Child Soldiers in Africa (2005);
David M. Rosen, Armies of the Young: Child Soldiers in War and Therrorism (2005);
and Peter Warren Singer, Children at War (2005).
See also Coalition to Stop the Use of Child Soldiers, Child Soldiers: Global Report 2004 (2004).
UN Doc. A/61/275 (17 August 2006).
UN Doc. A/59/695-S/2005/72 (9 February 2005).
See T. E. James, "The Age of Majority" (1960) 4 American Journal of Legal History 22.
See Ilene Cohn and Guy S. Goodwin-Gill, Child Soldiers; The Role of Children in Armed Conflict (1994), at p. 3
In a number of articles an age limit of 15 is given: see Articles 14, 23, 24, 38 and 50, Geneva Convention (IV) relative to the Protection of Civilians in Time of War of August 12, 1949, 75 UNTS973 (1950).
UN Doc. A/CONF.183/9∗ (1998), 2187 UNTS 90.
See Prosecutor v. Thomas Lubanga Dyilo, Warrant of Arrest, ICC-01/04-01/06-2, 10 February 2006;
and Prosecutor v. Tomas Lubanga Dyilo, Submission of the Document Containing the Charges pursuant to Article 61 (3) (a) and of the List of Evidence pursuant to Rule 121(3), ICC-01/04-01/06-356, 28 August 2006.
See Prosecutor v. Samuel Hinga Norman, Moinina Fofana and Allieu Kondewa: Indictment, Case No. SCSL-03-14-I, 4 February 2004;
Prosecutor v. Issa Hassan Sesay, Morris Kallon and Augustine Gbao: Corrected Amended Consolidated Indictment, Case No. SCSl-2004-15-PT, 2August 2006;
Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu: Further Amended Consolidated Indictment, Case No. SCSL-2004-16-PT, 18 February 2005;
and Prosecutor v. Charles Ghankay Taylor: Amended Indictment, Case No. SCSL-2003-01-I, 16 March 2006.
See Matthew Happold, Child Soldiers in International Law (2005), pp. 54-57
Article 77(2), Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3 (1977).
Article 4 (2) (c), Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609 (1977).
Article 38, CRC.
See http://www.icrc.org/ihl.nsf/INTRO?OpenView (last visited 29 March 2007).
See http://www.ohchr.org/english/countries/ratification/11.htm (last visited 29 March 2007).
(1999) 38 ILM 1207.
see Michael J. Dennis, "The ILO Convention on the Worst Forms of Child Labor" (1999) 93 AJIL 943;
GA res. 54/263 of 25 May 2000; (2000) 39 ILM 1285.
For further analysis, see Michael J. Dennis, "Newly Adopted Protocols to the Convention on the Rights of the Child" (2000) 94 AJIL 798;
Matthew Happold, "The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict" (2000) 3 YIHL 226;
and Daniel Helle, "Optional Protocol on the Convention on the Involvement of Children in Armed Conflict to the Convention on the Rights of the Child" (2000) 839 IRRC 797
See http://www.ilo.org/ilolex/english/newratframeE.htm (last visited 29 March 2007).
See http://www.ohchr.org/english/countries/ratification/11-b.htm (last visited 29 March 2007).
OAU Doc. CAB/LEG/24.9/49 (1990).
See http://www.africa-union.org/root/au/Documents/Treaties/treaties.htm (last visited 29 March 2007).
See Christopher Greenwood, "Customary Status of the 1977 Geneva Protocols", in AstridJ. M. Delissen and Gerald J. Tanja (eds), Humanitarian Law of Armed Conflict: Challenges Ahead: Essays in Honour of Frits Kalshoven (1991), pp. 101-2.
See the comments of Michael J. Matheson, then Deputy Legal Adviser, US State Department, in "The Sixth Annual American Red Cross - Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions" (1987) 2 American University JILP 415, at p. 421.
See Richard R. Baxter, "Multilateral Treaties as Evidence of Customary International Law" (1965-6) 41 BYBIL 275, at p. 277.
See Michael Bothe, "War Crimes", in Antonio Cassese, Paola Gaeta and John R. W. D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (2002), vol. I, p. 416.
Prosecutor v. Samuel Hinga Norman, Case No. SCSL-2004-14-AR729E, Decision on preliminary motion based on lack of jurisdiction (child recruitment), 31 May 2004, para. 17.
see Matthew Happold, "International Humanitarian law, War Criminality and Child Recruitment: The Special Court for Sierra Leone's Decision in Prosecutor v Samuel Hinga Norman" (2005) 18 Leiden JIL 283 at pp. 288-9.
Herman Von Hebel and Daryl Robinson, "Crimes within the Jurisdiction of the Court" in Roy S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results (1999), p. 118.
Prosecutor v. Samuel Hinga Norman, op. cit. note 40.
Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary (2003), p. 377.
See Prosecutor v. Lubanga, Pre-Trial Chamber I, ICC, Décision sur la confirmation des charges, 29 January 2007, ICC-01/04-01/06-803, para. 246.
See Article 13, Geneva Convention (I) for the Amelioration of the Condition of the Sick and Wounded in Armed Forces in the Field of August 12, 1949, 75 UNTS 31;
and Article 4, Geneva Convention (III) Relative to the Treatment of Prisoners of War of August 12, 1949, 75 UNTS 135.
See Michael Cottier, "Article 8: War Crimes", in Otto Trifterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers' Notes, Article by Article, p. 261;
see Prosecutor v Tadić, Case No. IT-94-1-A, Appeals Chamber, Judgement, 15 July 1999, para 80-149.
(1969) 1155 UNTS 331.
See Prosecutor v. Delalić et al., Case No. IT-96-21-A, Appeals Chamber, ICTY, Judgement, 20 February 2001, paras 56-84;
Oliver Wendell Homes Jr., The Common Law (1881), p. 1.
US v Omar Ahmed Khadr: Charges and Specifications, 2 February 2007, available at: http://www.defenselink.mil/news/d2007Khadr%20-%20Notification%20of%20Sworn%20Cha rges.pdf (last visited 29 March 2007).
Prosecutor v. Tadić, Case No. IT-94-1-A, Appeals Chamber, ICTY Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 70.
See also Prosecutor v. Akayesu, Case No. ICTR-96-1-T, Trial Chamber, ICTR, Judgement, 2 September 1998, para. 620, where the Trial Chamber referred to "armed forces organized to a greater or lesser extent".
Prosecutor v. Milošević, Case No. IT-02-54-T, Decision on Motion for Judgement of Acquittal, Trial Chamber, ICTY, 16 June 2004, para. 23.
Yves Sandoz, Christoph Swinarski and Bruno Zimmermann (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949(1987), p. 619.
See also Prosecutor v. Galić, Case No. IT-98-29-T, Trial Chamber, judgement, 5 December 2003, para. 48.
Frits Kalshoven, Constraints on the Waging of War (1st edn., 1987).
Prosecutor v. Tadić, op. cit. note 70, paras 111-9.
Prosecutor v. Akayesu, op. cit. note 70, para. 629.
Prosecutor v. Rutaganda, Case No. ICTR-1993-3-T, Trial Chamber, judgment, 6 December 1999, paras 99-100.
See also Prosecutor v. Musema, Case No. ICTR-96-13-T, Trial Chamber, judgement, 27 January 2000, paras 276-9;
and Prosecutor v. Semanza, Case No. ICTR-97-20-T, Trial Chamber, judgement, 15 May 2003, paras 363-6.
and Kasikili/Sedudu Island (Botswana/Namibia), judgment, ICJ Reports 1999, p. 1045 at para. 18.
See the arguments made with regard to the interpretation of domestic statutes in Jeremy Waldron, "Legislative Intent and Unintended Legislation", in Andrei Marmor, Law and Interpretation (1992).
For discussion of the issue, see Gerhard Werle and Florian Jessberger, "'Unless Otherwise Provided': Article 30 and the Mental Element of Crimes under International Criminal Law" (2005) 3 JICJ 35, pp. 43-9;
and Tomas Weigend, "The Harmonisation of General Principles of Criminal Law: The Statutes and Jurisprudence of the ICTY, ICTR and ICC: A Overview" (2004) 19 Nouvelles Etudes Pénales 319, p. 326.
See, e.g. Amnesty International news release, "The Special Court for Sierra Leone", 20 October 2000, AFR 51/081/2000
Human Rights Watch, "Justice and the Special Court: Letter to the United Nations Security Council", 1 November 2000;
and Coalition to Stop the Use of Child Soldiers, "Appeal on Sierra Leone: Special Court should prosecute recruiters, not child soldiers", 7 November 2000..
Prosecutor v. Sam Hinga Norman, op. cit. note 40, para. 53.
Alison Smith, "Child Recruitment and the Special Court for Sierra Leone" (2004) 2 JICJ 114;
and William A. Schabas, "The Rights of the Child, Law of Armed Conflict and Customary International Law: A Tale of Two Cases", in Karin Arts and Vesselin Popovski (eds.), International Criminal Accountability and the Rights of Children (2006), pp. 29-35.
Prosecutor v. Samuel Hinga Norman, op. cit. note 40
Dissenting Opinion of Justice Robertson, para.4.
and American Law Institute, Restatement of the Law, the Tird, the Foreign Relations Law of the United States (1987), vol. 2, para. 702.
See Michaela Fruili, "Are Crimes against Humanity More Serious than War Crimes?" (2001) 12 EJIL 329.
For examples of such behaviour, see Rachel Brett and Margaret McCallin, Children: The Invisible Soldiers, Stockholm: Rädda Barnen, rev. ed., 1998, pp. 92-93.
Cole P. Dodge, "Child Soldiers of Uganda and Mozambique", in Cole P. Dodge and Magne Raundalen (eds.), Reaching Children in War: Sudan, Uganda and Mozambique (1991);
Human Rights Watch, Easy Prey: Child Soldiers in Liberia (1994), p. 57;
Amnesty International, Sierra Leone: Childhood - A Casualty of Conflict (2000), p. 4;
and Human Rights Watch, Stolen Children: Abduction and Recruitment in Northern Uganda (2003), p. 9.
Redress, Victims, Perpetrators or Heroes? Child Soldiers before the International Criminal Court (2006).
