Is Child Recruitment as a War Crime Part of Customary International Law?

Abstract

‘That it [the crime of non-forcible enlistment] exists for all present and future conflicts is declared for the first time by the judgments in this Court today’ were the words of Justice Robertson to mark the starting point of a new era in the development of international criminal law. On 20 June 2007, Trial Chamber II of the Special Court of Sierra Leone issued a historic decision convicting the three accused in the AFRC case on the count, among others, of ‘conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities’, constituting another serious violation of international humanitarian law pursuant to Article 4(c) of the Special Court Statute. This decision was not only historic for its content with regards to being the first endorsement by an international tribunal of the international criminalisation of the offence of child recruitment as contained in Article 4(c) of the Special Court Statute and in Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Rome Statute, from which Article 4(c) takes its wording, but was moreover extraordinary because Trial Chamber II endorsed the Appeals Chamber majority decision of May 2004 in Prosecutor against Sam Hinga Norman1 to confirm the status of customary international law of the crime of ‘conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities’ as covered by the above-mentioned law, and all of which entailing the individual criminal responsibility of the accused for the commission of the crime during the period covered by the Special Court's jurisdiction rationae temporis. This paper first embarks on an overview of the existing international legislation on the offence of child recruitment and its evolution towards criminalisation as a war crime today. This criminalisation is starting to create new international jurisprudence. Further, a review of the legal requirements for a practice to be conceived as part of customary international law will take us to a quick illustration of the actual state practice and opinio juris in relation to child recruitment and use of child soldiers, to conclude that the crime of child recruitment, i.e. ‘conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities’, has attained today the status of international customary law, becoming a success in the history of international criminal law. The new status of the crime as a non-codified norm of international value and the possibility of its legal use by courts regardless of state ratification of a specific international treaty will deter perpetrators from committing this international crime. However, in contrast with the universal definition of ‘child’ covered by the 1989 UN Child Convention, a legal gap remains: although sufficient state practice may exist with regard to a minimum age for child recruitment set at 18 years, an opinio juris in this connection is still lacking. End the recruitment and use of children in armed conflict contrary to international law, ensure their demobilization and effective disarmament and implement effective measures for their rehabilitation, physical and psychological recovery and reintegration into society. Put an end to impunity, prosecute those responsible for genocide, crimes against humanity and war crimes and exclude, where feasible, these crimes from amnesty provisions and amnesty legislation, and ensure that whenever post-conflict truth and justice-seeking mechanisms are established, serious abuses involving children are addressed and that appropriate child-sensitive procedures are provided.2