COMING OF AGE IN ARMED CONFLICT
Dealing with the culpability of former child soldiers
as alleged perpetrators at the International Criminal Court
Master Thesis
By Wieke Rianne Vink
June 2016
LLM International Criminal Law
Global Alliance Programme Amsterdam Law School & Columbia Law School
University of Amsterdam and Columbia University
Supervisors:
Dr. A. van Verseveld (University of Amsterdam)
Prof. dr. L. Damrosch (Columbia University)
2 Introduction
Around the globe, many child soldiers and former child soldiers can be found. Both boys and girls are recruited and used by armed forces and groups to participate in combat or serve in support roles.This includes children as, amongst other things, fighters, cooks and sexual slaves.1 In the past, it estimated that between 250.000 and 300.000 child soldiers were participating in armed conflicts. In this regard, a list of relevant conflicts includes those in Angola, Algeria, Azerbaijan, Burma, Colombia, the Democratic Republic of the Congo, Ecuador, Egypt, El Salvador, Guatemala, Iran, Iraq, Lebanon, Liberia, Mexico, Mozambique, Nepal, Nicaragua, Paraguay, Peru, Rwanda, Sierra Leone, Sri Lanka, Somalia and Tajikistan.2 In Europe, children were participants in the armed conflicts in Bosnia and Northern Ireland and in opposition groups in Eastern-Europe and Turkey.3 It is likely that the number of current child soldiers has dropped in recent years4, yet new incidents have been reported in
countries such as Syria, South Sudan and Yemen. 5 Even in national armed forces, such as those of Myanmar, Afghanistan, Sudan and Chad, minor soldiers are present.6 Child soldiers have also been and continue to be part of national liberation movements and practices that might be described as terrorist activities.7 All in all, only 20% of recent conflicts did not involve child soldiers under the age of 15.8 Thus, the story of child soldiers is a diverse one, with a variety of faces, functions and geopolitical implications.
It should be stated that many child soldiers are, in fact, adolescents.9 Adolescence is a crucial developmental stage in human life, starting at approximately 10 years of age and enabling for the transition of child to adult.10 It was around this very age of 10 years old that Dominic Ongwen from Northern Uganda was abducted by the Lord’s
1 Office of the Special Representative of the Secretary-General for Children and Armed Conflict, ‘Child Recruitment and Use’ 2016. 2 Drumbl 2012, p. 26-27 and p. 133, Novogrodsky 2014, p. 368 and Singer 2006, p. 16 and p. 21. Unfortunately, this list may be long but is not exhaustive.
3 Singer 2006, p. 18 - 19.
4 Drumbl 2012, p. 26-27. However, the development and use of new technologies and weapons, including cheap and light machinery, does contribute to the extended use of child soldiers in certain contexts, see Cryer, Friman, Robinson & Wilmshurst 2014, p. 303.
5 Human Rights Watch 2016.
6 Office of the Special Representative of the Secretary-General for Children and Armed Conflict, ‘International Day against the Use of Child Soldiers: Child Soldiers are the Boys and Girls We Failed to Protect’ 2016.
7 Rosen 2005, p. 157. For example, suicide bombing also happens by children, see Singer 2006, p. 117. 8 Cryer, Friman, Robinson & Wilmshurst 2014, p. 303.
9 Drumbl 2015.
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Resistance Army (LRA) of well-known war lord Joseph Kony.11 Now in his late thirties12, Mr. Ongwen recently had his charges confirmed by the Pre-Trail Chamber of the International Criminal Court (ICC), with a wide variety of counts of crimes against humanity and war crimes.13 These charges include, for the first time in ICC history, crimes of which Mr. Ongwen himself once was a victim, namely that of the recruitment and use of child soldiers.14 As such, Mr. Ongwen is the first defendant at the ICC who may be considered both a victim and a perpetrator of international crimes.15 The indictment has been criticized by many people in Uganda and in the rest of the world, arguing that Mr. Ongwen had no choice but to follow orders within the LRA.16 Certainly, there is a wide variety of actors for whom the Ongwen case bears significance, including the defendant himself, his victims17, affected communities, the international community, State Parties and current and former child soldiers and their relatives. As one author puts it, “Ongwen could be any war-affected person’s child.”18
Criminal provisions dealing with children and child soldiers have been controversial in international criminal law. Indeed, the Ongwen case in its pre-trial phase brings to the forefront the question of culpability under extreme circumstances. No statistics on the exact numbers of former child soldiers are available, but with ongoing current and recently ended conflicts all over the world, they form a significant and well-established group – rather more so in scholarship than in legal provisions. Indeed, the literature on former child soldiers uses the non-legal concept of victim-perpetrator to describe their special status.19 Within this notion, individuals like Mr. Ongwen are victims by virtue of their experiences as a child soldier, while they can also be considered perpetrators by virtue of the domestic and international crimes they (continue to) commit as adults.
Clearly, there is a certain moral ambiguity in dealing with former child soldiers who commit international crimes in their adult life, while having started as a child soldier. The situation of child soldiers touches upon a fundamental question, namely whether former child soldiers can ever be held accountable for crimes committed by them, after
11 See ICC Prosecutor v. Dominic Ongwen, Case No. ICC-02/04-01/15, Further Redacted Version of “Defence Brief for the Confirmation of Charges Hearing”, filed on 18 January 2016, 3 March 2016, paragraph 1, Baines 2009, p. 163 and Warner 2015. Some argue Dominic Ongwen was older at the time of abduction, namely 12 years of age, see Whiting 2016.
12 His exact age is being contested, see ICC Prosecutor v. Dominic Ongwen, Case No. ICC-02/04-01/15, Further Redacted Version of “Defence Brief for the Confirmation of Charges Hearing”, filed on 18 January 2016, 3 March 2016, paragraph 11 – 16.
13 ICC Prosecutor v. Dominic Ongwen, Case No. ICC-02/04-01/15, Decision on the Confirmation of Charges against Dominic Ongwen. 14 Sander 2016.
15 Baines 2009, p. 163 – 164.
16 Refugee Law Project 2015, p. 4, Sander 2016 and Warner 2015.
17 No less than 2026 victims are participating in the Ongwen trail, see ICC Prosecutor v. Dominic Ongwen, Case No. ICC-02/04-01/15, Case Information Sheet, p. 2.
18 Baines 2009, p. 187. 19 Moffett 2016, p. 148.
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having grown up in such extreme and isolated situations within armed conflicts where “violence was the currency for survival.”20 This questions is further complicated by discrepancies between ideas on the impact and legitimacy of international criminal justice processes by local and international actors.21
This thesis follows the definition of the Paris Principles for child soldiers: “A child associated with an armed force or armed group: refers to any person below 18 years of age who is or who has been recruited or used by an armed force or armed group in any capacity, including but not limited to children, boys and girls, used as fighters, cooks, porters, messengers, spies or for sexual purposes. It does not only refer to a child who is taking or has taken a direct part in hostilities.”22 In this paper, the terms child soldier, child combatant and child fighter will be used interchangeably. When talking about children or minors, reference is being made to human beings under the age of 18 years old, in line with the definition of a child in Article 1 of the Convention on the Rights to the Child. Former child soldiers will be defined as those who reach majority, i.e. the age of 18 years old, while living as a child soldier till that date. The use of this term as such is in line with some scholars23, while ‘former child soldier’ is sometimes also being used when talking about minors whose life as a child soldier ended before the age of 18, for example because they escaped or were rescued and then were rehabilitated.24 These two notions should not be conflated. In common use of the term (former) child soldier in the current work, no distinction will be made between State and non-State actors. For children involved in national armed forces, the term child soldier will be used; for those involved in non-State armed groups, the terms soldier and rebel will be used interchangeably. As such, this thesis is concerned with all young people involved in fighter or supporting roles; be it within a State’s army or national security forces, a rebel group, a liberation movement or a more terrorist-like organization. There is extensive literature on child soldiers as victims under international law. Some pieces also address the complexities related to former child soldiers and their dual status as victims and potential perpetrators. This thesis combines such scholarship, in order to analyse the concept of culpability in the framework of the ICC.
The main research question reads as following:
Does the Rome Statute of the International Criminal Court have satisfactory provisions to deal with the culpability of former child soldiers as perpetrators of its core crimes?
It is a question that can be assessed purely on the basis of the proceedings in Ongwen, but it is argued in this thesis
20 Warner 2015.
21 Baines 2008, p. 166.
22 Paragraph 2.1 of the Paris Principles. 23 Seyfarth 2013.
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that the relevance and ramifications of such considerations go beyond the individual case and also beyond the framework of the ICC. Certainly, with ongoing conflicts in all parts of the world, Mr. Ongwen might not be the first accused whose alleged history of criminal activity involves experiences as a child soldier.25
The current research starts with a brief discussion of the concept of culpability. Next, a section will follow on the status of child soldiers in international law, to show how a significant part of former child soldiers previously were a protected group of children under international human rights and humanitarian law. The following section will discuss the status of current and former child soldiers in international criminal law, predominantly in light of case law of the ICC and the Special Court for Sierra Leone (SCSL). Then, two sections will zoom in on the Rome Statute and discuss its contents, drafting history and potential defences as available to former child soldiers at the ICC. Focus will be on Articles 26 and Articles 30 to 33 of the Rome Statute. These sections will be followed by comparative analyses of scholarship and case law on notions of adolescent development and environments characterised by violence and criminality in other jurisdictions, as to look for principles that might be of help in adjudicating cases concerned with former child soldiers at the ICC. Building on the work of other scholars, including Baines, Drumbl, Chamberlain, Happold, Seyfarth, Singer and Vaele, the section on reaching adulthood as a child soldier provides some important recommendations to take into account in that regard. Next, this thesis provides a list of six approaches in which the ICC could or rather should not deal with former child soldiers as perpetrators. 26 After this, the main research question will be answered, followed by some concluding remarks. All in all, it is the aspiration that this thesis will put forward some constructive arguments on dealing with the culpability of former child soldiers in ways that do justice to all beneficiaries of the international criminal law system. In this light, the current research hopes to contribute to a body of scholarly work that has not yet fully developed, in a field of studies where case law is scarce. The complicated questions raised by this thesis shed an important yet challenging light on the practice of international criminal law in general and at the ICC in particular - a context in which empathy with perpetrators might not be amongst one’s initial tendencies.27 Should it be?
25 Seyfarth 2013, p. 29.
26 This is a newly identified yet non-exhaustive list, based on analysis of the Rome Statute, scholarship, comparative legal analysis and transitional justice theories. Other approaches are welcomed.
6 The concept of culpability
Culpability is the determination of legal guilt. It requires an assessment of whether or not an individual in the specific circumstances of a case cumulatively could and should have acted differently.28 In civil law traditions, the notion of culpability exists of two different criminal law components: questions related to the guilt or innocence of the specific individual concerned and questions related to potential reasons for justification of the act this individual is being prosecuted for.29 At the ICC – with its mixture of influences from common and civil law – these questions are put together in Articles 30 to 33 of the Rome Statute.30 These articles will be examined more closely in later sections of this work.
For now, it is sufficient to note that the determination of culpability within the legal realm is a very specific and narrow conceptualisation of guilt. It is a determination of guilt that goes beyond psychology or sociology; it merely requires judges to assess whether or not certain criminal acts can be attributed to a certain individual and whether he or she can be held individually criminally responsible for those acts. Obviously, contextual factors and available information on the psyche of alleged perpetrators is being taken into account, but ultimately the verdict is a legal. In the context of international criminal law specifically, it is up for the judges to determine whether violent acts – if indeed occurred – were performed by someone for whom no combatant privilege exists.31 It is the notion of individual criminal responsibility together with principles of collective criminality that are crucial to the concept of the perpetrator and his or her culpability in international criminal law.32 In the predominantly adversarial system of international criminal law, however, focus is on the culpability of the individual and not so much on interactions between individual and collective responsibility in the creation of collective violence and mass atrocities.33 Remorse can be considered as a personal expression of feeling guilt.34 In this regard, it should be noted that someone may not be guilty in a legal sense, yet still may benefit from experiencing guilt in a more psychological and moral sense - as a human emotion, which results from a sense of self, agency and reflection. As such, clear
28 See Cryer, Friman, Robinson & Wilmshurst 2014, Chapter 15 and 16, starting at p. 353.
29 These are the so-called justifications and excuses, see Cryer, Friman, Robinson & Wilmshurst 2014, p. 398 and 399. 30 Sluiter, Friman, Linton, Vasiliev & Zappalà 2013, p. 50.
31 I.e. in the case of international armed conflicts. Professor Klaus Kress argues that a similar ‘privilege of belligerency’ should also be granted in non-international armed conflicts, see Kress & Mégret 2014.
32 Cryer, Friman, Robinson & Wilmshurst 2014, p. 353. 33 See Henham 2011, p. 245 and Baines 2009, p. 164. 34 Seyfarth 2011, p. 22.
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distinctions should be drawn between legal culpability and more broad notions of guilt.35 Indeed, in the famous memoir of child soldier Ishmael Beah he describes how the statement ‘It is not your fault’ in the therapeutic setting of rehabilitation is not met with relief by him and his peers, but with hostility.36 Such feelings of resentment may actually be beneficial to rehabilitating child soldiers and their communities, as they signal a commitment to morality and enable the process of forgiving.37 As such, it is clear how guilt serves various functions in different areas of human lives, of which culpability in the law is just one.
Within legal practice, judges and other actors in international criminal law should be aware of the impact of their legal qualifications, insofar as they establish a distribution of statuses for victims, witnesses and perpetrators alike.38 Indeed, a determination of guilt in international criminal law is first and foremost an assessment of blame; an indication of who is to be held responsible for the mass atrocities that have occurred.39 In these assessments, current and former child soldiers have a specific and peculiar status, as will be discussed in the following sections.
The status of child soldiers under international law
In times of armed conflict, violence against children is used as a weapon of war.40 But what if children themselves take up arms – either voluntarily or by force? This section describes the status of current and former child soldiers under public international law.
The Convention on the Rights of the Child defines children as all human beings under the age of 18 years old.41 Article 38 of the Convention on the Rights of the Child establishes that in times of armed conflict State Parties should act in line with their responsibilities under international humanitarian law.42 The Article outlines that States should strive to prevent the participation of children under the age of 15 in hostilities and refrain from
recruitment of children under that age limit themselves.43 States also have extensive responsibilities with regard to
35 Sanders 2011, p. 199. 36 Sanders 2011, p. 215. 37 Thomason 2016, p. 115. 38 Fournet 2011, p. 42. 39 Henham 2011, p. 241. 40 Chamberlain 2015, p. 12.
41 “Unless, under the law applicable to the child, majority is attained earlier”, see Article 1 of the Convention on the Rights of the Child. 42 Article 38(1) and (4) of the Convention on the Rights of the Child.
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the rehabilitation of child victims of armed conflict.44
The 2000 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict makes a distinction between armed forces of the State and non-State actors with regards to child soldiering. When it comes to the State’s armed forces, States cannot compulsory recruit children under the age of 18.45 Children below the age of 18 may voluntarily enlist for their national armed forces, but States should raise the minimum age of voluntary recruitment to 15 and should work to ensure that those under the age of 18 do not take direct part in combat.46 Armed groups are called upon in Article 4 of the Optional Protocol and prohibited to recruit or use in hostilities anyone under the age of 18.47 What’s more, State Parties are summoned to prevent recruitment of minors by such non-state armed groups and should criminalise such practices in its domestic law.48 Notably, no provisions exist with regard to former child soldiers and their status under human rights law.
Under international humanitarian law, children are predominantly dealt with as a protected group, in their position as civilians and non-combatants.49 Additional Protocol I to the Geneva Conventions mentions that parties to a conflict “shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities.”50 In both international and non-international armed conflict, recruitment of children under the age of 15 is prohibited.51 A similar prohibition can be found in Article 8 of the Rome Statute of the ICC under (2)(b)(xxvi) and (2)(c)(vii).52 Noteworthy, both Additional Protocols to the Geneva Conventions recognise that children may participate in armed conflict. Additional Protocol I describes this as “exceptional cases”.53 In such cases, Additional Protocol I establishes how de facto child soldiers continue to be protected
44 Article 39 of the Convention of the Rights to the Child. Noteworthy, “such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.”
45 Article 2 of the Optional Protocol on the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict. 46 Article 3 and 1 of the Optional Protocol on the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict.
47 Article 4(1) of the Optional Protocol on the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict. 48 Article 4(2) of the Optional Protocol on the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict. 49 Chamberlain 2015, p. 65.
50 Article 77(2) of Additional Protocol I to the Geneva Conventions.
51 Article 77(2) of Additional Protocol I to the Geneva Conventions and Article 4(3)(c) of Additional Protocol II to the Geneva Conventions.
52 Interestingly, the inclusion of this war crimes provision in Article 8 of the Rome Statute was not without discussion. During the negotiations of the Rome Statute, it was ultimately agreed to do so, because of the codification of these crimes under international human rights humanitarian law and its status as customary international law, see Cryer, Friman, Robinson & Wilmshurst 2014, p. 304
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under Article 77 of the Protocol, regardless of any status as prisoner of war.54 In non-international armed conflict, child soldiers shall remain protected under Article 4(3)(d) of Additional Protocol II, including when captured. Again, no such provisions exist addressing the status of older adolescent fighters or former child soldiers. Taking international humanitarian law and international criminal law together, one can identify three age categories of combatants with corresponding legal statuses: those child soldiers under the age of 15, that are subject to most protections under the Convention of the Rights to the Child and international humanitarian law and cannot be held criminally responsible; child soldiers between the ages of 15 and 18, who are still minors under international law, benefit from less protection than their younger ‘colleagues’, but cannot be held individually criminal responsible; and adults from 18 years old and above, who are subject to no special protections and can be held individually criminally responsible.55 When defining child soldiers as combatants under the age of 18, former child soldiers have moved through at least two of the above three stages.56 As such, some former child soldiers, i.e. those whose involvement started under the age of 15, were once a protected group under international law.57 Not surprisingly, the United Nations Children’s Fund (UNICEF) has been actively working on the theme of child soldiers. In 1997, it co-organised a symposium that led to the adoption of the Cape Town Principles and Best Practices on the Prevention of Recruitment of Children into the Armed Forces and on Demobilization and Social Reintegration of Child Soldiers in Africa.58 These were followed up by the Paris Principles in 2007, that address practices of child soldiering globally. Chapter 6 of these Paris Principles deals with the unlawful recruitment and use of children, whereas Chapter 7 outlines recommendations with regards to release and rehabilitation of child soldiers. Further, the International Labour Convention has condemned the recruitment and use of child soldiers as amongst the worst forms of child labor, listing it with slavery, child trafficking and debt bondage.59 Lastly, it
54 Article 77(3) of Additional Protocol I to the Geneva Conventions.
55 Child soldiers from 15 to 18 years old may still be subject to domestic criminal proceedings. Furthermore, this categorization at the international level creates a gap between the ages for protection and potential prosecution for child soldiers, which arguably should be repaired within the Rome Statute to not leave those combatants aged 15 to 18 in legal isolation, see Chaikel 2015.
56 Child soldiers from 15 to 18 years of age do, however, not hold any official status in international humanitarian law and international criminal law. For example, recognition of child soldiers as victims within the Rome Statute is only present for those under the age of 15, see Chaikel 2015.
57According to Article 5 of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, the best standard for protection of children’s rights prevails, which arguably refers to its own prohibitions of child soldiering practices under the age of 18. Hence, critiques argue that in the Rome Statute, the age for criminal provisions concerned with child soldiering should also be raised to 18 years of age, see Chaikel 2015. See also Novogrodsky 2014, p. 370: “If criminal responsibility is conferred only for the recruitment of persons under the age of fifteen, and individuals will be tried only if they are eighteen or older at the time of the commission of offenses, commanders may be incentivized to recruit fifteen-, sixteen- and seventeen-year-olds.”
58 Paragraph 12 of the Paris Principles.
59 Article 3(a) of the Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour.
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should be noted that abduction is a common practice in child soldier recruitment.60 For example, in Uganda, it is estimated that over 90% of the LRA are forcefully abducted children, of which Mr. Dominic Ongwen once was one.61 Abduction of children is illegal under all circumstances, both under international and domestic law. The Inter-American Court has extensive case law on the rights and protection of children in armed conflicts, including on enforced disappearances.62 Indeed, regional mechanisms also deal with the situation of current child soldiers. The African Charter on the Rights and Welfare of the Child, for example, establishes in its Article 22 an obligation for State Parties to take measures against recruitment of child soldiers under the age of 18. There is also a whole list of regional resolutions on child soldiers and the protection and rights of children in armed conflict.63 It should be noted that, indeed, national jurisdictions can adjudicate current and former child soldiers for the perpetration of mass atrocities or mass human rights violations.64 Provision on the age of criminal responsibility vary from country to country, but should be in line with the Convention on the Rights to the Child for those States party to the Convention.65 For example, the War Crimes Chamber in the Court of Bosnia and Herzegovina can exercise jurisdiction over individuals of 14 years and older, but has not actually adjudicated any minors.66 Notwithstanding, some scholars argue that legal proceedings should not be taking place for child soldiers under the age of 15, as culpability for them is argued to be impossible.67 All in all, it is clear how the situation of child soldiers is of major concern in international law, while the status of former child soldiers remains uncodified.
International criminal law and culpability of former child soldiers
Victimhood is the dominant connotation related to child soldiers in international law and hence, international criminal law and culpability of former child soldiers seem out of place.68 However, under international criminal
60 Vaele 2006, p. 2.
61 Vaele 2006, p. 2 and Chaikel 2015. Mr. Ongwen was abducted while heading to school when he was approximately ten years of age, see Baines 2009, p. 163. At abduction, Mr. Ongwen actually give a wrong name to the Lord’s Resistance Army’s rebels, see Baines 2009, p. 169. 62 Chamberlain 2015, p. 80 – 81.
63 These include the 1996 Resolution on the Plight of African Children in Situations of Armed Conflict, the 1998 European Parliament Resolution on Child Soldiers and the 1999 Montevideo Declaration on the Use of Children as Soldiers, see for an overview Singer 2006, p. 142.
64 Chamberlain 2015, p. 21.
65 Which includes almost all States of the world, with the noteworthy exception of the United States of America, see
https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-11&chapter=4&lang=en [accessed online on 1 June 2016]. 66 See Drumbl 2012, p. 125.
67 Chamberlain 2015, p. 22.
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law, child soldiers are currently only recognized when they are below the age of 15, in line with various war crimes provisions.69 As such, former child soldiers have already lost their potential formal status as victims from the age of 15 onwards – three years before reaching majority. This allows for an assessment of culpability outside the realm of victimhood, with a perpetrator’s past only to be taken into account as a general personal circumstance. Noteworthy, specific legal provisions on culpability will not be found amongst the articles or elements of many international crimes.70 Notwithstanding, the concept of ‘intent’ and ‘knowledge’ are omnipresent in international criminal justice, for example in the genocide provisions of the Rome Statute.71 Furthermore, the concept of mens
rea – usually including ‘intent’ and ‘knowledge’ - is a specific conceptualisation of culpability, which only leads to a
conviction of an individual if a certain state of mind was present at the time of the alleged acts.72 Indeed, the idea of a guilty mind and moral blameworthiness has been present in international criminal law for centuries.73
The two most important institutions when it comes to the culpability of former child soldiers in international criminal law, are the International Criminal Court and the Special Court of Sierra Leone. Notably, the
International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda have not dealt with this theme, even though minor perpetrators were indeed involved in those conflicts. Under the Rome Statute, former child soldiers do not have a special status. In line with Article 26, potential jurisdiction of the Court starts at the age of 18. From majority onwards, assessment of culpability is not hindered by any legal restrictions – other than potentially the grounds for excluding criminal responsibility, which will be discussed in a later section. Indeed, the assessment of culpability is not automatically affected by any dysfunctions in mental or moral development, which may be the result of exposure to violence as a child soldier.74
Adjudicating cases that involve child soldiers, is not new to the ICC. Indeed, already in the first case before the Court, Mr. Lubanga was convicted of the war crime of enlisting and conscripting children under the age of 15 in his armed group and using them to participate actively in hostilities.75 With the ongoing Ongwen trial, the first case law on the status of former child soldiers as alleged perpetrators is about to materialize. In the decision on the
69 Chaikel 2015.
70 Seyfarth 2013, p. 3.
71 Article 6 of the Rome Statute and ICC Elements of Crimes. See also Article 30 of the Rome Statute.
72 Seyfarth 2013, p. 15. Through Article 30, ‘intent’ and ‘knowledge’ are indeed mental elements of all international crimes within the Rome Statute, see Triffterer & Ambos 2016, p. 1117.
73 Triffterer & Ambos 2016, p. 1113. 74 Seyfarth 2013, p. 16.
75 See Cryer, Friman, Robinson & Wilmshurst 2014, p. 14 and ICC Prosecutor v. Lubanga Dyilo, Case No. ICC-01/04-01/06, Case Information Sheet.
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confirmation of charges against Mr. Ongwen, Pre-Trial Chamber II rules that his status as a former child soldier would not be a basis for excluding individual criminal responsibility almost 30 years after his victimisation as a child soldier.76 Duress cannot successfully be invoked by the defence to exclude individual criminal responsibility either, according to the Pre-Trail Chamber.77 They argue that “the circumstances of Dominic Ongwen’s stay in the LRA (…) cannot be said to be beyond his control.”78 These notions of agency and culpability will be further discussed in the next sections, but it is of interest that these strict rulings are not in line with most of the literature on the circumstances and contexts former child soldiers find themselves in.79
At the Special Court for Sierra Leone, a different approach was taken with regards to jurisdiction and child soldiers. With many minors having committed international crimes during the course of the Sierra Leonean civil war, the drafters of the SCSL Statute agreed upon a special, age-based regime.80 It was established that the Court may exercise jurisdiction over all alleged perpetrators from the age of 15 years onwards.81 Special procedures were created for those perpetrators in the age category 15 – 18 years old.82 For underaged perpetrators, rehabilitation is the main focus and no imprisonment may take place.83 This conscious shift of direction is of major interest to the current research, as it signifies a departure from the results of the negotiations of the Rome Statute, that took place in earlier years.84 In this regard, it is of relevance to note that, again in the Lubanga case, the ICC referred to case law of the SCSL on various occasions, as a discretionary matter. This was limited, however, to issues of child recruitment and not the status of victim-perpetrators as in the case of former child soldiers.85 Indeed, Article (4) of the Statute of the SCSL prohibits the conscripting, enlisting and use of children under 15 years of age – a crime for which actually all defendants at the SCSL were indicted.86 As such, the SCSL was the first to adjudicate these
76 ICC Prosecutor v. Dominic Ongwen, Case No. ICC-02/04-01/15, Decision on the Confirmation of Charges against Dominic Ongwen, Pre-Trail Chamber II, 23 March 2016, paragraph 150.
77 ICC Prosecutor v. Dominic Ongwen, Case No. ICC-02/04-01/15, Decision on the Confirmation of Charges against Dominic Ongwen, Pre-Trail Chamber II, 23 March 2016,paragraph 151.
78 ICC Prosecutor v. Dominic Ongwen, Case No. ICC-02/04-01/15, Decision on the Confirmation of Charges against Dominic Ongwen, Pre-Trail Chamber II, 23 March 2016, paragraph 154.
79 See the sections on Coming of age under criminal law, Environments characterized by violence and criminality and Reaching Adulthood as a child soldier in the current work.
80 See Cryer, Friman, Robinson & Wilmshurst 2014, p. 183. 81 Article 7 of the Statute of the Special Court for Sierra Leone.
82 See Articles 15(5) and 19(1) of the Statute of the Special Court for Sierra Leone. 83 See Articles 7(2) and 19(1) of the Statute of the Special Court for Sierra Leone. 84 For more on the negotiations of the Rome Statute, please refer to the next section.
85 See Chamberlain 2015, p. 94 and ICC Prosecutor v. Lubanga Dyilo, Case No. ICC-01/04-01/06, Case Information Sheet.
86 N. Arzoumanian & F. Pizzutelli, ‘Victimes et Bourreaux: Questions de Responsabilité Liées à la Problématique des Enfants-Soldats en Afrique, Review du Comité International de la Croix Rouge, 2003/85, 827, cited in Chamberlain 2015, p. 94.
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war crimes related to child soldiering in international criminal law, after which the ICC followed.87
Already in the negotiations of the Statute of the SCSL, controversy existed on whether or not to include child soldiers of 15 and above as potential perpetrators.88 Therefore, the first Prosecutor of the SCSL refrained from cases involving minors.89 He grounded his rationale on ‘the greatest responsibility’-doctrine, based on which Mr. Ongwen at the ICC has currently been indicted as part of the leadership of the LRA.90 As successive Prosecutors have maintained this refusal of prosecution of minors despite the provisions in the statute, no underaged
perpetrators were tried at the SCSL.91 What’s more, within the framework of the SCSL, former child soldiers could only be adjudicated as any other adult would be, which is similar to the provisions in the Rome Statute.92 Noteworthy, the Special Panels for Serious Crimes in East Timor also held jurisdiction over children, starting at the age of 12.93 According to Section 45(4), children from the age of 16 onwards could even be tried while using ordinary criminal procedures. Despite this highly controversial Section – very much out of step with international law -, again, similar to the SCSL, no case law on children’s involvement in international crimes materialized.94
The drafting history of the Rome Statute with regards to culpability
As the remainder of this research focuses on the status of former child soldiers at the ICC, this section takes a closer look at the drafting of the Rome Statute. With regards to culpability, what are the contents and negotiation history of Articles 26 and 30 to 33 of the Rome Statute and how is this relevant for former child soldiers? Article 26
Article 26 of the Rome Statute establishes an exclusion of jurisdiction for individuals below the age of 18 at the time of the alleged criminal act. Based on Article 26, no current or former child soldiers can be subject to
87 Aptel 2014, p. 342.
88 Aptel 2014, p. 349. 89 Aptel 2014, p. 350.
90 See Aptel 2014, p. 350 and ICC Prosecutor v. Dominic Ongwen, Case No. ICC-02/04, Warrant of Arrest for Dominic Ongwen, 8 July 2005, paragraph 9.
91 Aptel 2014, p. 360. 92 Novogrodsky 2014, p. 371.
93 Section 45 of the Transitional Rules on Criminal Procedure for the UNTAET.
94 Drumbl 2012, p. 124 – 125. See for a discussion of the one case in which the Prosecutor actually did initially charge a child with crimes against humanity the section on Coming of age under criminal law.
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investigation or prosecution for acts performed while still a minor. Maturity or mental state is not relevant in this regard.95 Moreover, based on the drafting history of Article 26, it is clear how the Rome Statute does not exclude jurisdiction for the prosecution of international crimes by children at the national level.96
During the negotiations of the Rome Statute, Article 26 was a fairly easy conversation. Indeed, the drafters of the Rome Statute quickly agreed that children should not be prosecuted by the ICC for a variety of reasons, including lack of resources and the variety of approaches towards age and criminal responsibility at the national level.97 Now, some scholars argue that the exclusion of jurisdiction in Article 26 should be limited to those under the age of 15, in order to get Article 26 in line with the age restriction in the war crimes related to child soldiering.98 Such an adaptation of the Rome Statute would also be in line with the provision on jurisdiction at the SCSL.99
Nevertheless, such an amendment of the Rome Statute is not foreseeable in the near future.
It should also be noted that in the case of (former) child soldiers, the exact age of an individual may be uncertain. Hence, those working with young people have an obligation to exercise due diligence in identifying a person’s age – a responsibility which arguably can also be extended to those adjudicating criminal cases, including at the ICC.100 For example, Mr. Ongwen’s current age and age at the time of his abduction are both contested.101
Article 30
Article 30 is crucial to understanding culpability in the Rome Statute, as it sets out the legal framework for mens rea at the ICC.102 In full, paragraph 1 of Article 30 reads as following: “Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.”103 Indeed, ‘intent’ and ‘knowledge’ are a
95 Drumbl 2012, p. 119.
96Triffterer & Ambos 2016, p. 1036. 97 Drumbl 2012, p. 119 – 120.
98 Chaikel 2015. However, others argue that national jurisdictions may be in the best position to make judgment calls about child
perpetrators aged 15 and above within the specific domestic context, see Triffterer & Ambos 2016, p. 1034. Some also advocate that rather than lowering the age in Article 26, the age for criminalization of child soldiering practices in Article 8 should be moved upwards to 18, see the section on the status of child soldiers under international law.
99 Article 7 of the Statute of the Special Court for Sierra Leone. 100 Cryer, Friman, Robinson & Wilmshurst 2014, p. 305.
101ICC Prosecutor v. Dominic Ongwen, Case No. ICC-02/04-01/15, Further Redacted Version of “Defence Brief for the Confirmation of Charges Hearing”, filed on 18 January 2016, paragraph 1 and 11, Baines 2009, p. 163, Warner 2015 and Whiting 2015.
102 Triffterer & Ambos 2016, p. 1112. 103 Article 30(1) of the Rome Statute.
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exhaustive list, as other forms of culpability may be included through the phrase “Unless otherwise provided.”104 Most notably, the Elements of the Crimes may specify other mental elements that can construe individual criminal responsibility.105 The Elements do not, however, set out specific requirements for former child soldiers. Thus, paragraph 2 and 3 of the Article - as they explain the concepts of intent and knowledge – remain central to our understanding of the culpability of former child soldiers within the Rome Statute. As such, former child soldiers should both have an intention towards certain criminal conduct or consequences and an awareness about the likelihood of a circumstance to exist or a consequence to materialize.106
Article 31
Already during the drafting process of the Rome Statute, the link between Article 26 and Article 31 became clear (and confusing), as some argued that age should serve as a defence.107 Eventually, Article 31 provides a non-exhaustive list of grounds for excluding individual criminal responsibility, without any such reference to the age of the accused.108 During the process of drafting the Rome Statute, intense discussions took place as to whether the Rome Statute should even include a list of grounds for excluding criminal responsibility.109 Arguably, the fact that such Article now stands, shows the importance the drafters attached to these specific types of exclusion grounds. Noteworthy, the number of grounds for excluding individual criminal responsibility as listed in Article 31 is small when compared with such grounds as found in national jurisdictions. This may be attributable to the character of the core crimes outlined in the Rome Statute: international crimes of such horrible nature, that any defence may feel out of place.110 Such a claim, however, cannot be categorically upheld, especially when former child soldiers can be regarded as both perpetrators and victims of the Rome Statute’s same core crimes.
Article 32
Mistake of fact and mistake of law have been present in the discussions on the Rome Statute for a long time; even in periods where Article 31 was highly controversial. As such, mistake of law and mistake of fact have widely been
104 First words of Article 30(1) of the Rome Statute; Triffterer & Ambos 2016, p. 1113. 105 Triffterer & Ambos 2016, p. 1113.
106 Article 30(2) and (3) of the Rome Statute. 107 Triffterer & Ambos 2016, p. 1031.
108 Article 31 of the Rome Statute. However, Article 26 could effectively be seen as such a ground for excluding criminal responsibility, see Triffterer & Ambos 2016, p. 1131. This Article-26 exclusion is mostly a procedural matter, see Drumbl 2012, p. 119.
109 Triffterer & Ambos 2016, p. 1129.
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recognized as either excluding individual criminal responsibility or a mitigating factor for sentencing.111 During the negotiations, some argued that mistakes were already included in the mens rea required for culpability.112 Indeed, mistakes by definition refer to mental states of defendants.113 For example, in the practice of the ICC, mistakes of law where raised in the Lubanga case. The Court ruled that being unaware of the scope and trigger mechanisms of individual criminal responsibility pursuant to Article 25 is not sufficient to negate culpability.114 This may also be of relevance to former child soldiers, who might not know about the ramifications of international criminal law, but might still be knowledgeable about the criminality of the underlying acts.115 Indeed, such awareness might even be strengthened in former child soldiers by the ongoing Ongwen trial, insofar as they recognize him as a peer. Article 33
Former child soldiers have been intensively disciplined within their armed groups from a very young age116 and hence, may want to raise a claim based on superior orders in those cases in which they have not climbed the ranks of their armed groups and are in command themselves. Article 33, however, is highly controversial.117 This is partly due to the increased importance of individual criminal responsibility and the idea that culpability, even in armed conflicts, is personal.118 As such, the drafting history of Article 33 shows that a claim on superior orders will likely only be successful if raised in connection with other defences and would at most give relief in the form of mitigation.119 Surely, some notion on lack of agency is present in Article 33120, but the general rule is that this does not exclude individual criminal responsibility.121 For former child soldiers, it might be relevant that orders to
111 Triffterer & Ambos 2016, p. 1131. During the Nuremberg trials, however, mistake of law was denied, whereas mistake of facts was acknowledged, see Triffterer & Ambos 2016, p. 1163.
112 Triffterer & Ambos 2016, p. 1166. 113 Triffterer & Ambos 2016, p. 1167.
114 See ICC Prosecutor v. Lubanga Dyilo, Case No. ICC-01/04-01/06, Case Information Sheet and Triffterer & Ambos 2016, p. 1176. 115 See Triffterer & Ambos 2016, p. 1177.
116Singer 2006, p. 75-80.
117 Triffterer & Ambos 2016, p. 1132.
118 Cryer, Friman, Robinson & Wilmshurst 2014, p. 411-412. 119 Triffterer & Ambos 2016, p. 1189.
120 Triffterer & Ambos 2016, p. 1188. 121 Triffterer & Ambos 2016, p. 1189.
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commit war crimes are not manifestly unlawful.122 Former child soldiers with rank may also themselves be held responsible for the acts of child soldiers under their command, pursuant to Article 28 of the Rome Statute.123
Grounds for excluding criminal responsibility for former child soldiers at the ICC
Surely, various grounds for excluding criminal responsibility may be available to former child soldiers. As said, Article 31 outlines a non-exhaustive list of grounds for excluding criminal responsibility. Such grounds can also be found elsewhere in the Rome Statute, for example in Article 25(3)(f), Article 26, Article 32 and Article 33124 as well as through various other sources of international and national law by virtue of Article 21.125 This section deals with grounds for excluding criminal responsibility based on the Rome Statute itself.126 For convenience, such grounds will also be referred to as defences, even though this concept was purposefully not included in the Rome Statute as such.127 What potential grounds for excluding criminal responsibility are available to former child soldiers once they are brought before Court as alleged perpetrators? And how could the Court respond?
It should be stated from the onset that defences have rarely been successful in the arena of international criminal justice, let alone lead to an acquittal.128 Notwithstanding, within the Rome Statute, excuses and justifications can both be invoked as well as any other reason for substantially negating culpability129. In this regard, the most obvious defences that could be relevant to former child soldiers are arguably mental disease and defect, intoxication and duress. The latter was also called upon by the defence for Mr. Ongwen in anticipation of his confirmation of charges hearing.130 Self-defence, mistakes and superior orders will also be briefly discussed.131
122 Orders concerned with acts of genocide and crimes against humanity are, see Article 33(c) of the Rome Statute. 123See alsoVaele 2006, p. 3.
124 Conform Triffterer & Ambos 2016 p. 1131 – 1132. 125 Pursuant to Article 31(3) of the Rome Statute.
126 For an analysis of principles that may be derived from national law pursuant to Article 21(1)(c), please refer to the next sections. The section on the Status of child soldiers under international law may shed some light on the limited principles that can be found in international law pursuant to Article 21(1)(b), with, as described, no specific provisions on the status of former child soldiers. 127 Triffterer & Ambos 2016, p. 1135.
128 Van der Wilt 2011, p. 275. In this regard, please note that full exclusion of individual criminal responsibility should lead to an acquittal (or dismissal of charges in the pre-trial stage of the proceedings), whereas defences that amount to a limitation of individual criminal responsibility may lead to a mitigation of sentencing upon conviction.
129 S. Wexler, Model Draft Statute for the International Criminal Court based on the Preparatory Committee’s Text to the Diplomatic Conference Rome, June
15 – July 17 1998, cited in Triffterer & Ambos 2016, p. 1135.
130 ICC Prosecutor v. Dominic Ongwen, Case No. ICC-02/04-01/15, Further Redacted Version of “Defence Brief for the Confirmation of Charges Hearing”, filed on 18 January 2016, paragraphs 50 – 57.
131The analysis in the current chapter does not go into detail on the various elements of grounds for excluding criminal responsibility, but rather provides some pointers as to how such claims could be used in the case of former child soldiers.
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Mental disease or defect
There might be circumstances in which former child soldiers could put forward a claim under Article 31(1)(a) of the Rome Statute. The test under this Article, however, is strict, as a full mental defect is required.132 Indeed, mental capacities should be fully destroyed at the time of the alleged crime for an exclusion of individual criminal responsibility.133 If this is not the case, but mental capacities were affected in some significant way, mitigation of sentencing might be an option.134 For former child soldiers, defence claims should be based on childhood experiences while in the armed conflict, with lasting consequences upon reaching adulthood. Clearly, adolescence is a crucial period of life, in which many important developmental trajectories take place.135 General conditions within armed groups, such as stress, lack of sleep and insufficient nutrition may affect such processes as well as general physical and mental health.136 In this regard, it should further be acknowledged that trauma – as likely experienced by all former child soldiers – can also heavenly impact on cognitive processes within child and adolescent development.137 The frequent intake of alcohol and drugs, as discussed below, may also impair development. Indeed, addiction to alcohol or drugs may be acknowledged under Article 31(1)(a).138 Furthermore, through the mere intense exposure to violence, desensitization takes place, which might render former child soldiers less mentally capable of acting and reacting to such instances by making moral choices themselves.139 All in all, circumstances related to the status as a former child soldier may in very exceptional cases amount to a full mental defect that is permissible under Article 31(1)(a) as a ground for excluding criminal responsibility.
Post-Traumatic Stress Syndrome (PTSD) as a result of experiences as a child soldiers may also qualify as a mental disease specifically. As PTSD may not fully impair an individual’s mental capacities, this would, however, fall short on the ‘destruction’-test set out in Article 31. Other diagnoses that could be referred to by former child soldiers include depression and mood and anxiety disorders as a result of child soldiering experiences.140
132 Cryer, Friman, Robinson & Wilmshurst 2014, p. 401.
133 Conform Article 31 and 31(1)(a) of the Rome Statute. See also Werle & Jessberger 2014, p. 255. 134 Werle & Jessberger 2014, p. 255.
135 Arnett & Hughes 2012, p. 15.
136 For example, rehabilitated child soldier C., who was a child soldier from the ages of nine to fifteen, says “(…) We’re in the bush and there was no food.” Quoted in Singer 2006, p. 103 from a 2002 NBC news report in the program ‘Today’.
137 Vaele 2006, p. 7. 138 Knoops 2001, p. 123. 139 Seyfarth 2013, p. 13. 140 Seyfarth 2013, p. 4.
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Intoxication
Article 31(1)(b) deals predominantly with involuntary intoxication, which again needs to have fully destroyed an individual’s capacity to evaluate his or her behaviour.141 It should be noted that intoxication by alcohol and drugs is a common feature of the armed groups in which child soldiers are involved.142 This was also recognized by the ICC in the Lubanga case.143 Furthermore, “one way of controlling child soldiers is to force them to take drugs and alcohol in order to reduce fear and impulse control.”144 This may have lasting effects on the brain development of child soldiers and could also lead to substance abuse as an adult. Again, the test under this provision is strict.145 As such, it seems unlikely for a former child soldier to successfully invoke this as a ground for excluding individual criminal responsibility. What’s more, voluntary use of alcohol of drugs may even be used as an aggravating factor in the sentencing decision.146 This, however, would seem unfair in the context of former child soldiers, in cases where they grew up in environments in which substance use is expected and promoted from a very young age. Defence of oneself, another individual or property
Article 31(1)(c) deals with self-defence or the defence of another person with regard to all core crimes and defence of property in the context of war crimes. Arguably, the idea of ‘kill to survive’ is linked to this defence.147
Referring to the Ongwen case, for example, independent LRA expert Ledio Cakaj states: “To a certain extent we are holding him responsible for being alive.” Mr. Ongwen’s defence counsel also argues that for former child soldiers “rank is simply demonstrative of one’s survivability”.148 Such claims, however, will likely not be acknowledged under the tests of imminent and unlawful use of force and proportionality as set forth by the Article, especially not for former child soldiers who climbed the ranks of their armed groups and performed leadership roles.149
141 See Cryer, Friman, Robinson & Wilmshurst 2014, p. 403. 142 Seyfarth 2013, p. 12.
143 ICC Prosecutor v. Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on Sentence Pursuant to Article 76 of the Statute, 10 July 2012, paragraph 41.
144 Seyfarth 2013, p. 12.
145 Cryer, Friman, Robinson & Wilmshurst 2014, p. 403. 146 Cryer, Friman, Robinson & Wilmshurst 2014, p. 403. 147 Refugee Law Project 2015, p. 4.
148 ICC Prosecutor v. Dominic Ongwen, Case No. ICC-02/04-01/15, Further Redacted Version of “Defence Brief for the Confirmation of Charges Hearing”, filed on 18 January 2016, Defence for Dominic Ongwen, 3 March 2016, paragraph 48.
149 This may also be indicated by ICC Prosecutor v. Dominic Ongwen, Case No. ICC-02/04-01/15, Decision on the Confirmation of Charges against Dominic Ongwen, 23 March 2016, paragraph 150.
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Duress
For the first time in the history of international criminal law, the concept of duress and necessity was codified in Article 31(1)(d) of the Rome Statute.150 With the Ongwen case being the first to assess the status of former child soldiers at the ICC, this is also the first defence based on Article 31 that was invoked in front of the Court in this context.151 Indeed, Mr. Ongwen’s defence counsel put forward a strong plea for duress, based on systematic indoctrination and instinct and survival incentives in the violent environment in which Mr. Ongwen found himself after abduction as a child.152 According to Pre-Trial Chamber II, however, anticipated disciplinary measures do not qualify as a threat of death or serious violence under Article 31(1)(d).153 Furthermore, committing crimes is not the only choice available to former child soldiers who remain in their armed groups as adults. Indeed, refusal to perform certain acts, trying to escape, navigating with less ‘ambition’ within the ranks of the armed group or dying – either by being killed or by committing suicide – are amongst the other options.154 This is also ruled by the Pre-Trail Chamber in the Ongwen case.155 However, this might be a lot to ask. Indeed, especially escape can have chilling consequences. As S., aged 15, describes: “One boy tried to escape, but he was caught. His hands were tied, and then they made us, the other new captives, kill him with a stick. I felt sick. I knew this boy from before. We were from the same village. I refused to kill him and they told me they would shoot me. They pointed a gun at me, so I had to do it. They boy was asking me, “Why are you doing this?” I said I had no choice.”156 Arguably, Mr. Ongwen, at least at a later age and by virtue of his rank, had more of a choice to determine his own war-time acts. In Ongwen, the Pre-Trail Chamber further argues that Mr. Ongwen should have done more to avoid harm to others, including the civilian population.157 In this regard, it is of interest to note that in the literature on the matter, some of Ongwen’s fellow rebels argue that Dominic Ongwen acted with humanity and proportionality in some instances, whereas in other situations he acted with great cruelty and extreme violence.158 More generally speaking, duress may, again, not easily be successful in negating the culpability of former child soldiers.
150 Cryer, Friman, Robinson & Wilmshurst 2014, p. 405.
151 ICC Prosecutor v. Dominic Ongwen, Case No. ICC-02/04-01/15, Decision on the Confirmation of Charges against Dominic Ongwen, 23 March 2016, paragraph 151.
152 ICC Prosecutor v. Dominic Ongwen, Case No. ICC-02/04-01/15, Further Redacted Version of “Defence Brief for the Confirmation of Charges Hearing”, filed on 18 January 2016, 3 March 2016, paragraphs 50 – 57.
153 ICC Prosecutor v. Dominic Ongwen, Case No. ICC-02/04-01/15, Decision on the Confirmation of Charges against Dominic Ongwen, 23 March 2016, paragraph 153.
154 Baines 2009, p. 182.
155 ICC Prosecutor v. Dominic Ongwen, Case No. ICC-02/04-01/15, Decision on the Confirmation of Charges against Dominic Ongwen, 23 March 2016, paragraph 154.
156 Quoted in Singer 2006, p. 91, from a 2001 Human Rights Watch report called The Scars of Death.
157 ICC Prosecutor v. Dominic Ongwen, Case No. ICC-02/04-01/15, Decision on the Confirmation of Charges against Dominic Ongwen, 23 March 2016, paragraph 155.
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Mistake of fact
Mistake of fact inherently relates to culpability, as it can only be invoked where mens rea is lacking.159 This refers back to the required mental element in Article 30(1) of the Rome Statute. To invoke such claim, a mere perceptual error is needed.160 As such, Article 32(1) bears no specific relevance to the status of former child soldiers.
Mistake of law
Mistake of law is of interest to the issue of culpability, as it may be theorised in various ways. In certain conceptualisations, a defendant may be punishable even though his culpability is negated, whereas in other
theories found in national jurisdictions the issues of intent and culpability are treated as distinct matters. Currently, the mistake of law provision in the Rome Statute is very limited, which makes a successful claim on Article 32(2) as a ground for excluding criminal responsibility not likely for former child soldiers.161 If read together with Article 30, for example, it is not required that former child soldiers know the international legal provisions relevant to their behaviour.162 Hence, it is unlikely that the Court will allow a defence on, for example, disruption of education resulting in a limited understanding of the law and individual legal obligations, even though it is likely that former child soldiers suffered from a shortening of their schooling as a result of their child soldiering experiences.163 Superior orders
The language of Article 33 already indicates that superior orders are not an easy defence under the Rome Statute, unless the specific requirements of (a), (b) and (c) all were cumulatively present at the time of the alleged crime. Interestingly, the focus in this Article is more on the content of the orders than it is on the mens rea of the accused.164 A claim based on superior orders may be most successful when put forward in connection with other defences, such as duress.165 In this light, it is of interest that Mr. Ongwen’s defence counsel argues that Mr. Ongwen did not hold any major powers within the Lord Resistance Army. In their analysis, Joseph Kony was the
159 Cryer, Friman, Robinson & Wilmshurst 2014, p. 410. 160 Triffterer & Ambos 2016, p. 1171.
161 Van Verseveld 2012, p. 181.
162 See Triffterer & Ambos 2016, p. 1115.
163 This is not influenced by the fact that child soldiers, like all children, hold the right to education under the treaty law provision of Article 28 of the Convention on the Rights to the Child.
164 Cryer, Friman, Robinson & Wilmshurst 2014, p. 414. 165 Cryer, Friman, Robinson & Wilmshurst 2014, p. 415.
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sole leader of the LRA.166 Defence argued that Mr. Kony is also the individual whose threats Mr. Ongwen fears.167 Article 21
Article 21 of the Rome Statute becomes of importance for assessing potential defences for former child soldiers pursuant to Article 31(c) of the Rome Statute. In this context, Article 21 establishes what sources of law are applicable in all cases before the ICC. Obviously, the list includes the Rome Statute itself as well as the ICC’s Elements of Crimes and the Rules of Procedure and Evidence.168 Article 21(1)(b) mentions various sources of international law, including treaty law and general principles and rules of international law. This includes the provisions on child soldiers within the Geneva Conventions and its Additional Protocols and the Convention on the Rights of the Child and its Optional Protocol. However, as noted previously, none of these sources include specific provisions on the status of former child soldiers. As such, Article 21(1)(c) might currently be of more importance, as it allows for the use of general principles of law based on national jurisdictions. The following sections will analyse whether such principles can be found in domestic legal systems and case law, with a focus on notions of adolescent development, trauma and environments characterised by violence and criminality.
Comparative analysis: coming of age under criminal law
Professor of Comparative Literature Mark Sanders states that “humanitarian and human rights advocacy around child soldiers leads us to believe that human beings under eighteen years of age are made into agents of violence by adults.” 169He calls this “the legal fiction of the previolent child”.170 This section discusses such notions and the way other jurisdictions outside the ICC deal with the concepts of aging, agency and adolescent development. Generally speaking, individual criminal responsibility or the lack thereof of children is a controversial theme. Article 40(3)(a) of the Convention on the Rights to Child calls on State Parties to set a minimum age below which children are deemed not capable of contravening criminal law, yet determines no such age and provides no guidelines on an appropriate minimum. In their General Comment No. 10, the UN Committee on the Rights of
166 ICC Prosecutor v. Dominic Ongwen, Case No. ICC-02/04-01/15, Further Redacted Version of “Defence Brief for the Confirmation of Charges Hearing”, filed on 18 January 2016, 3 March 2016, paragraph 26.
167 ICC Prosecutor v. Dominic Ongwen, Case No. ICC-02/04-01/15, Further Redacted Version of “Defence Brief for the Confirmation of Charges Hearing”, filed on 18 January 2016, 3 March 2016, paragraph 56.
168 Article 21(1)(a) of the Rome Statute. 169 Sanders 2011, p. 198.
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the Child only states that 12 years of age is the absolute internationally accepted minimum.171 Indeed, the age of criminal responsibility varies from country to country and issues of mens rea are also dealt with differently all over the world. 172 Furthermore, certain systems are flexible. For example, in the Netherlands, there is some leeway for judges to decide about the applicable law for adolescents in the age group of 16 to 23 years old, based on a law that allows for considerations on factors such as the age and developmental capacities of the accused involved.173 This is in line with new notions in adolescent developmental psychology, that proscribe fluid notions of the various developmental trajectories in human lives. Indeed, it is argued that age should not directly be linked to rigid or fixed developmental stages, as such developmental trajectories vary, for example from culture to culture.174 Hence, there should be a layered approach to age within the law, too, in order to effectively address children and adolescents in the legal realm.175 The Dutch law provides such flexibility.
When it comes to culpability, it should be noted that victimhood is concerned with vulnerability, whereas agency and certain notions of adolescent development take responsibility as their main concern.176 In this light, it should be acknowledged that children are able to exercise resistance and resilience in a wide variety of circumstances.177 Some initial notion of agency is already inherent to the war crimes provisions in the Rome Statute. Indeed, child soldiers – i.e. those under the age of 15 – can be either conscripted, which means forcefully recruited, or can enlist voluntarily.178 This signifies at least some trust in the decision-making capacities of minors. Certainly, there are various reasons why children and adolescents would want to join State or non-State armed forces, including revenge, grievance and religious or ideological motivation.179 Further, those that were initially forcefully recruited might actually start supporting the cause of their armed group, including as a result of intensive brainwashing
.
180 In this light, it is of interest that even though the Optional Protocol to the Convention on the Rights of the Child allows for the enlistment of children from the age of 15 onwards in the armed forces of a State, this is not automatically accepted by the Inter-American Court on Human Rights. In Vargas Areco v. Paraguay they ruled with
171 United Nations Committee on the Rights of the Child, General Comment No. 10 – Children’s Rights in Juvenile Justice, 25 April 2007, paragraph 32. 172 Vaele 2006, p. 1. 173 Rechtspraak.nl 2016. 174 Vaele 2006, p. 7. 175 Novogrodsky 2014, p. 371. 176 Moffett 2016, p. 150. 177 Baines 2009, p. 179.
178 Article 8 (2)(b)(xxvi) and (2)(c)(vii) of the Rome Statute and Chamberlain 2015, p. 19. 179 Vaele 2006, p. 2 and Singer 2006, p. 120.
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caution, stating that coercion - either directed at the children involved or at their families - may be in place.181 At the ICC, it was determined in the Lubanga case that some children under the age of 15 may actually be capable of providing a valid and informed consent to enlistment in an armed group, whereas their voluntary enlistment is still prohibited under international law.182
It was stated in a previous section, that there is no case law on child perpetrators of international crimes at the international level. At the Special Panels for Serious Crimes in East-Timor, however, a minor perpetrator was initially brought before the court, charged with counts of crimes against humanity.183 In Prosecutor v. X, the accused was still below the age of 18, while he was 14 years old at the time of the crimes.184 On the first day of trial, though, the Prosecutor dropped the charges on crimes against humanity and instead, only charged murder under the Indonesian Penal Code.185 To this, X plead guilty, which was considered by the Court as a mitigating factor.186 X had already spent 11 months and 21 days in pre-trail detention and was ultimately sentenced to 12 months.187 In the case of Roper v. Simmons - a landmark case in the American context – the US’ Supreme Court ruled that the death penalty for minors is unconstitutional.188 This is in line with a provision in international humanitarian law, which states that capital punishment may not be carried out for all combatants under the age of 18.189 Further, in
Graham v. Florida, it was found that life imprisonment without parole possibilities for minor perpetrators of crimes
outside the realm of homicide was also against the US Constitution.190 In Roper v. Simmons, the Supreme Court both looks at international legal norms and at scholarship on child and adolescent development to come to its determinations.191 Referring back to Roper v. Simmons, in Graham v. Florida, the Supreme Court states that, by virtue of their age and developmental capacities as well as the nature of the crime, “when compared to an adult
181 IACtHR Case of Vargas-Areco v. Paraguay, Series C No 155, Judgment on Merits, Reparations and Costs, 26 September 2006, paragraph 129.
182 Chamberlain 2015, p. 110. 183 Drumbl 2012, p. 124.
184 SPSC Dili District Court Prosecutor v. X., Case No. 04/2002, Judgment, 2 December 2002, paragraph 54. 185 Drumbl 2012, p. 124.
186 SPSC Dili District Court Prosecutor v. X., Case No. 04/2002, Judgment, 2 December 2002, paragraph 58. 187 SPSC Dili District Court Prosecutor v. X., Case No. 04/2002, Judgment, 2 December 2002, section J. Disposition.
188 US SC Roper v. Simmons, No. 03-633, 1 March 2005, under B. Capital punishment for children is now considered to be against the Eighth Amendment.
189 Article 77(5) of Additional Protocol I to the Geneva Conventions. 190 US SC Graham v. Florida, No. 08-7412, 17 May 2010.
