https://www.cmn.cx/cms/index.php?

folder=83&id=5667

SCSL
Referring to the Appeals Chamber in Fofana and Kondewa, the Trial Chamber in Sesay et al. confirmed that:
"the mens rea requirement of the offence requires not only that the person be aware that the child is under
the age of 15, but also that the child may be trained for or used in combat."[31]
"We recall that children as young as eight and nine were abducted. We are therefore satisfied that many
children abducted were sufficiently young that the perpetrators knew from their physical appearance that
they were under the age of 15."[32]
The Pre-Trial Chamber in Kantaga and Chui held that:
"[t]he negligence standard of "should have known" is met when the perpetrator: (i) did not know that the
victim was under the age of fifteen years at the time he used the victim to participate actively in hostilities,
and ii) lacked such knowledge because he did not act with due diligence in the relevant circumstances (i.e
the perpetrator "should have known" and his lack of knowledge resulted from his failure to comply with
his duty to act with due diligence)".
Furthermore, the Trial Chamber in Sesay et al. stated that:
"the consistent pattern of conduct of using persons under the age of 15 in hostilities was sufficient to put
the perpetrators on notice that there is a substantial likelihood that the persons being used by them in
hostilities were under the age of 15. The fact that the perpetrators may not in all cases have had actual
knowledge of the ages of the persons used is immaterial given that the perpetrators had reason to know of
their ages."[36]
According to the Trial Chamber in Taylor:
"[g]iven the prevalence of children in the RUF the Trial Chamber is satisfied that the perpetrators,
including Kamara knew or should have known that these children were under the age of 15 years."[37]
"[f]urther, based on evidence of this screening process, the Trial Chamber is satisfied that the perpetrators,
including TF1-362, knew or should have known that these children were under the age of 15 years."[38]

Michael Cottier, "Article 8" in Otto Triffterer, ed, Commentary on the Rome Statute of the International Criminal
Court (1999) para. 232:
"With respect to the level of knowledge the accused must have with regard to the age of the child, it is

submitted that it is sufficient that the accused was willfully blind to the fact that the child was under
fifteen years. The mens rea requirement would for instance be met if the accused does not provide for
safeguards and inquire the age of the child even though the childs age appears close to the protected
minimum age."

extras;
BOOTHBY Bill, And for Such Time as: The Time Dimension to Direct Participation in Hostilities, in Journal of International
Law and Politics, Vol. 42, No. 3, 2010, pp. 741-768

>>>
https://www.icrc.org/casebook/doc/glossary/direct-participation-hostilities-glossary.htm

International humanitarian law does not define direct participation. The ICRC issued Interpretive Guidance which provides
recommendations concerning the interpretation of international humanitarian law as it relates to the concept of direct participation. The
recommendations in the Interpretive Guidance, as well as the accompanying commentary, do not change binding rules of treaty
law or customary law of armed conflict, but reflect the ICRC's institutional position as to how existing international humanitarian law
should

be

interpreted

in

light

of

the

circumstances

prevailing

in

contemporary

armed

conflicts.

The following definition of the concept of direct participation in hostilities is taken from the Interpretive Guidance.
Definition: Direct participation in hostilities consists of specific acts carried out by individuals as part of the conduct of
hostilities between

parties

to

an

armed

conflict.

Constitutive elements of direction participation in hostilities: In order to qualify as direct participation in hostilities, a specific act must
meet

the

following

cumulative

criteria:

a.the act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or,
alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm);
b.there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated
military operation of which that act constitutes an integral part (direct causation); and
c.the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and
to the detriment of another (belligerent nexus).
>>>>
e prosecution notes the interpretation of the Appeals Chamber of
the Special Court for Sierra Leone (SCSL) that enlistment (meaning
in this context recruitment of a voluntary or compulsory nature) []
include[s] any conduct accepting the child as a part of the militia. Such
conduct would include making him participate in military
operations.1742 248.

Prosecutor v. Fofana and Kondewa, Case No.

SCSL-04-14-A, Appeals Chamber, Judgement, 28 May 2008 (CDF Appeal Judgment), para. 144.

>>>

Prosecutor v. Nahimana et al., Case No.

ICTR-99-52-A, Appeals Chamber, Judgement, 28 November 2007, para. 721
n the circumstances of this case, conscription and
enlistment are dealt with together, notwithstanding the Chambers
earlier conclusion that they constitute separate offences. These offences
are continuous in nature. They end only when the child reaches 15
years of age or leaves the force or group.1790
"[i]n the context of this case, in which the armed group is not a conventional military organisation,
"enlistment" cannot narrowly be defined as a formal process. The Appeals Chamber regards
"enlistment" in the broad sense as including any conduct accepting the child as a part of the militia.
Such conduct would include making him participate in military operations."[20]
Appeals Chamber in Fofana and Kondewa

Furthermore, the Lubanga Trial Chamber stated that:

"an overly expansive definition of active participation in hostilities would be inappropriate as its
consequence would be that children associated with armed groups lose their protected status as persons
hors de combat under the law of armed conflict. Nonetheless, the Chamber finds that the nature and
purpose of the crimes committed against civilians' warrants their characterization as active participation
in hostilities. The Chamber considers this interpretation necessary to ensure that children are protected
from any engagement in violent functions of the armed group that directly support its conflict against
the adversary and in which the child combatant would be a legitimate military target for the opposing
armed group or groups."[26]

extras;

Prosecutor v. Thomas Lubanga Dyilo, ICC, Case No. ICC-01/04-01/06, Dcision sur la confirmation

des charges, January 29, 2007, http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-803_French.pdf.,

paras. 268-285>>>>>>>>SCope of the term "national armed force"-The prosecution charged Lubanga
under article 8(2)(e)(vii),40 which addresses the conscription or enlistment of children under the age of
fifteen years into armed forces or groups.
Article 8(2)(b)(xxvi), the crime substituted by PTC I, however, addresses the conscription or enlistment
of children under the age of fifteen years into the national armed forces.
PTC I considered whether the term national armed forces restricted the scope of the article to
government armed forces.41 The chamber relied on the Geneva Conventions as well as the
jurisprudence of the International Criminal Tribunal for the former Yugoslavia. It also observed that
interpreting the word national as meaning governmental would contravene the Rome Statute as the
Court would not be able to prosecute an armed group party to a conflict; in Lubangas case, Lubanga
would not be prosecuted because the armed conflict was of an international character. PTC I found that
the scope of the words national armed forces in article 8(2)(b)(xxvi) is not restricted to government
armed forces, and thus includes Lubangas armed group

The Chamber considers that the expression national armed forces must be defined. In this regard,
Article 43 of Protocol Additional I to the Geneva Conventions of 12 August 1949 defines the armed
forces of a Party to a conflict as consisting of all organised armed forces, groups or units which are
under a command responsible to that Party for the conduct of its subordinates, even if that Party is
represented by a government or an authority not recognized by an adverse Party. Such armed forces
must be subject to an internal disciplinary system which, inter alia, enforces compliance with the rules
of

international

law

applicable

in

armed

conflict.

272. The Chamber notes that, in the context of a conflict of an international character, Protocol I does
not require that the armed forces be governmental forces. In this regard, the Chamber refers to the
commentary on the Protocol, which states that it is perfectly clear that the Protocol has extended its
field of application to entities which are not States. [] If they conform to the requirements of the
present article, liberation movements fighting against colonial domination [] and resistance
movements representing a pre-existing subject of international law may be Parties to the conflict
within the meaning of the Conventions and the Protocol. However, the authority which represents them
must have certain characteristics of a government, at least in relation to its armed forces.
273. The commentary on Article 43 of Protocol I states that the notion of party to the conflict is fairly

wide, involving not only resistance movements representing a pre-existing subject of international law
and governments in exile, but also those fighting for conflicts of self-determination or national
liberation.

Trial Chamber, in considering the definition of armed groups and when such groups could be said to
be

acting

on

behalf

of

State,

stated:

189. The Chamber recognises that armed forces or groups may be either State or non-State
controlled. The Chamber has already expressed its approval of the following definition of armed
groups

given

in

the Tadic Appeal

Judgement:

One should distinguish the situation of individuals acting on behalf of a State without specific
instructions, from that of individuals making upan organised and hierarchically structured group, such
as a military unit or, in case of war or civil strife, armed bands of irregulars or rebels. Plainly, an
organised group differs from an individual in that the former normally has a structure, a chain of
command and a set of rules as well as the outward symbols of authority. Normally a member of the
group does not act on his own but conforms to the standards prevailing in the group and is subject to
the authority of the head of the group. [ICTY, Tadi case, Judgement on Appeal, 120]

975. The Chamber endorses the principle that an organised armed group may be said to be acting on
behalf of another State when that State exercises overall control over the group. In order to satisfy this
test, it must be shown that the [State in question]:
(i) Provided financial and training assistance, military equipment and operational support, and
(ii) Participated in the organisation, co-ordination or planning of military operations.

[footnotes in

original omitted; emphasis in original]

In its oral pleadings before the ICJ in the Application of the Convention on the Prevention and
Punishment of the Crime of Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro) in
2006,

Bosnia

and

Herzegovina

noted:

[I]t would be useful to give some consideration to the issue of how the armed forces of a State should
be defined. Such a definition appears in Article 43 of the 1977 Protocol I additional to the Geneva
Conventions. It reads: The armed forces of a Party to a conflict consist of all organized armed forces,

groups and units which are under a command responsible to that Party

In The Prosecutor v. Delali et al., the Appeals Chamber of the ICTY held that Bosnian Serb victims
should be regarded as protected persons for the purposes of Geneva Convention IV because they were
arrested and detained mainly on the basis of their Serb identity and they were clearly regarded by the
Bosnian authorities as belonging to the opposing party in an armed conflict and as posing a threat to the
Bosnian

State.

280. Accordingly, the Chamber observes that the Appeals Chamber of the ICTY has construed the term
national in Article 4(1) of the Fourth Geneva Convention as referring not solely to nationality as
such, but also to the fact of belonging to the opposing party in an armed conflict.
281. Secondly, interpreting the term national to mean governmental can only undermine the object
and purpose of the Statute of the Court, which is none other than to ensure that the most serious
crimes of concern to the international community as a whole must no longer go unpunished

__-Hague Regulations (1907)

Article

of

the

1907

Hague

Regulations

provides:

The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps
fulfilling the following conditions:
1) To be commanded by a person responsible for his subordinates;
2) To have a fixed distinctive emblem recognizable at a distance;
3) To carry arms openly; and
4) To conduct their operations in accordance with the laws and customs of war.
In countries where militia or volunteer corps constitute the army, or form part of it, they are included
under the denomination army.
Geneva Convention III
According to Article 4(A) of the 1949 Geneva Convention III, persons belonging to one of the
following categories who have fallen into the power of the enemy are prisoners of war:
1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer
corps

forming

part

of

such

armed

forces.

2) Members of other militias and members of other volunteer corps, including those of organized
resistance movements, belonging to a Party to the conflict and operating in or outside their own
territory, even if this territory is occupied, provided that such militias or volunteer corps, including such
organized resistance movements, fulfil the following conditions:
a) that of being commanded by a person responsible for his subordinates;
b) that of having a fixed distinctive sign recognizable at a distance;
c) that of carrying arms openly;
d) that of conducting their operations in accordance with the laws and customs of war.
3) Members of regular armed forces who profess allegiance to a government or an authority not
recognized by the Detaining Power.
Additional Protocol I
Article

43(1)

of

the

1977

Additional

Protocol

provides:

The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which
are under a command responsible to that Party for the conduct of its subordinates, even if that Party is
represented by a government or an authority not recognized by an adverse Party. Such armed forces
shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the
rules of international law applicable in armed conflict