Jocelin Tjandra 473595
Children of Freedom: A Question of Responsibility?
Final Essay — International Criminal Law
“Seeing Ongwen in the ICC, (the people of Northern Uganda) see the picture of their own children. When
Kony is there, they will feel good, (but) not Ongwen: he is almost born in the LRA. This was our child. He
was taken, survived and ultimately escaped. They have the chicken thief, but not the real thief.”
- Personal communications of Resident Direct Commissioner in Lira District, Northern Uganda, 2016
The rules prohibiting recruitment and participation of child soldiers in hostilities has been
recognised to emanate from customary international law , yet there is not yet an uniform age limit1
for both recruitment and participation. UN’s Convention on the Rights of a Child (‘CRC’) defines a
child as a person under 18, yet the age limit for recruitment and participation in armed conflicts is2 3 4
reduced to 15, resembled in the Rome Statute of the International Criminal Court (‘ICC Statute’) .5
This ambiguity is further complicated by the disparity of domestic laws with regard to the minimum
age of criminal responsibility, ranging from 7 to 16 throughout the world. The ICC’s jurisdiction6 7
is to include everyone, as long as they are nationals of a State Party of the ICC Statute, above the
age of 18. The war crime of child soldier relates to two war crimes: the admission and use of child.8
There are two forms of admission: conscription and enlistment. The former is regarded as a9
forcible act that entails an element of compulsion, while enlistment encompasses the acceptance of
a ‘voluntary’ child’s decision to join the military force, which includes any form of participation as
part of militia. The ICC Chambers also noted that a child’s consent to recruitment is not a defence
to admission of child soldiers . Despite this, conscription is considered as an aggravated form of10
acceptance, and as such this aspect is usually included as consideration during the sentencing stage.
United Nations Security Council, ‘Report of the Secretary General on the establishment of a Special Court for Sierra Leone’ (41
October 2000) UN Doc S/2000/915, ¶ 14.
United Nations Convention on the Rights of a Child (adopted UNGA Res 44/25 of 20 November 1989, entered into force 22
September 1990) (‘CRC’), art. 1.
Ibid, art. 38(3): ‘States Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed3
forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen
years, States Parties shall endeavour to give priority to those who are oldest.’
Ibid, art. 38(2): ‘States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years4
do not take a direct part in hostilities.’
Rome Statute of the International Criminal Court (‘ICC Statute’), art. 8(2)(e)(vii).5
Ibid, art. 40(3)(a): ‘States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions6
specifically applicable to children alleged as, accused of, or recognised as having infringed the penal law, and, in particular: (a) the
establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law;’
Committee on the Rights of the Child, General Comment No. 10 (2007): Children’s Right in Juvenile Justice, ¶32.7
ICC Statute, art. 26.8
Prosecutor v. Thomas Lubanga Dyilo (Decision on the Confirmation of Charges) ICC-01/04-01/06 (29 January 2007) ¶246-247.9
Prosecutor v. Thomas Lubanga Dyilo (Prosecution Closing Submissions) (21 July 2001) ¶617.10
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This view is also shared by the Inter-American Court of Human Rights . In addition, the decision11
of child soldiers’ landmark case by Special Court of Sierra Leone (‘SCSL’) described the only
method of conscription as abduction, leading to heavy criticism since it failed to recognise that12
‘voluntary’ enlistment of children in armed conflict is ultimately a desperate attempt of a child to
survive, which can be attributed to socio-economic conditions: poverty, discrimination, and lack of
education or as victims of indoctrination.
On the other hand, the crime of use of child soldiers is usually divided into direct and
indirect participation. It is further described that direct participation requires elements of adversely
affecting military operations/capacity, and the acts must be specifically designed to directly cause
the threshold of harm. Despite this distinction, the Preparatory Committee of the ICC Statute has13
specifically used the terminologies ‘using’ and ‘participate’ to cover both forms of participation .14
Therefore, the ICC Statute included a broader language, ’using to participate actively’, in lieu of the
common classification. Instead of providing an autonomous interpretative guidance on the notion of
active participation, the Court has decided that each activity must be considered in a case-by-case
basis, in which the same approach was taken by the SCSL.
The Pre-Trial Chambers Court in Lubanga’s case interpreted ‘active interpretation’ based on
the child’s exposure to real danger as a potential target, as is similarly concluded by the SCSL that15
children guarding mines met the threshold of harm in its Statute due to the constant risk that they
faced. This was challenged by the Defence in the appeal stage, declaring it ‘wholly unfounded in16
international law or internationally recognised principles and rules’ . The Appeals Chamber agreed17
and declared that the element for active participation shall be a link/connection between the activity
in which the child is engaged in and hostilities/military operations. While indirect participation,18
such as doing domestic chores for soldiers, will exclude the child from the ambit of active soldiers;
this may nevertheless include the possibility of the perpetrators to be charged with other provisions
of the ICC Statute, such as the prohibition against enslavement or rape, where applicable.
Paraguay v. Vargas-Areco (Judgment) Inter-American Court of Human Rights Series C No 155 (26 September 2006) ¶122.11
Prosecutor v. Alex Tamba Brima and others (‘The AFRC Case’) (Judgment) SCSL-04-16-7 (20 July 2007) ¶274.12
Boothby, Bill, ‘And for Such Time As: The Dimension to Direct Participation in Hostilities’ (Journal of International Law and13
Politics 42/3, 2010) p. 741-768.
Draft Statute of the International Criminal Court, Report of the Preparatory Committee on the Establishment of an International14
Criminal Court’ (14 April 1998) UN Doc. A/CONF./183/2/Add.1, ¶21.
Prosecutor v. Thomas Lubanga Dyilo (Judgment Pursuant to Art. 74 of the Statute) (14 March 2012), ¶628.15
Prosecutor v. Charles Taylor (Judgment) SCSL-03-01-T (18 May 2012), ¶1479.16
Prosecutor v. Thomas Lubanga Dyilo (Decision on Appeals) (1 December 2004), ¶319.17
Ibid.18
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Children’s position in the crime of child soldiers is multi-faceted: they are both victims and
perpetrators. Since many international instruments have declared that children below the age of 15
are absolutely protected, an analogy that a child too young to fight shall also be too young to be
held criminally responsible for serious violations of IHL has emerged. However, a child is anyone
under the age of 18. Noting the absence of a prohibitive provision in international law with regard
to prosecutions of children between the age of 15 and 18, this indicates that children between such
age range can be held criminally responsible for their crimes. The Committee on the Rights of the
Child has simply stated that the international standard of minimum age shall not be below 12 years
old. However, child soldiers are only under ICC’s jurisdiction as they reached the age of 18.19
In all decisions relating to administration of juvenile justice, the primary consideration has
to be the best interests of the child. Furthermore, the CRC provides a right for accused children to20
be treated in a manner consistent with the promotion of their sense of dignity and worth, hence the21
imposition of a criminal punishment to children must be intended to promote reintegration and reappropriation
of a constructive role in society. Even if holding children accountable may become
problematic in some regards, absolving them from complete responsibility is also not in their best
interests, since acknowledgement, atonement and in some instances, prosecution, may be important
for personal recovery; contributing to acceptance by families, communities and societies at large.
Moreover, there can be no capital punishment. Domestic trials in Democratic Republic of Congo22
in 2001 had imposed death sentences to four boys between the ages of 14 and 16, yet they were
never executed due to interventions led by the Human Rights Watch. Imposition of life23
imprisonment may be permitted, yet this must be considered against the right to periodic review and
cannot be imposed without the possibility of parole, since all sentences imposed upon children24
must bear the possibility of release that should be realistic and regularly considered.25
Furthermore, criminal prosecutions are justified, even in the case of children as perpetrators,
since there is a need to erase a culture of impunity with respect to acts constituting mass atrocities.
Accountability is an important phase to accomplish to enable societies coping with the past and for
post-conflict reconstruction. The lack of case-law of administration of juvenile justice for serious
General Comment No. 10 (n.7), ¶30.19
UNCRC (n.2), art. 3.20
UNCRC (n.2), art. 40(1).21
Ibid, art. 37(a).22
Human Rights Watch, ‘Congo: Don’t execute Child Soldiers’ (2 May 2001), <https://www.hrw.org/news/2001/05/02/congo-dont-23
execute-child-soldiers>, accessed on 20 November 2017
General Comment No. 10 (n.7), ¶77.24
UNCRC (n.2), art. 25.25
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violations of IHL shows the preference of international tribunals to undertake a different approach:
rather than prosecuting children, another possibility is to bring child soldiers before a court once
they are of age. This approach erases the debate on jurisdiction and child soldiers’ accountability
depends upon the existence of two compulsory aspects of the crimes: establishment of actus reus/
physical act and mens rea/intent. While establishing the actus reus of crimes was always completed
with ease based on factual evidences of such atrocities, the establishment of intent was much more
abstract and problematic, especially in the case of children. The dual status of the convicted, both as
victim and perpetrator, has initiated discussions about long-term effects of socialisation with armed
groups on children. Researches have shown that the risk of developing a mental impairment is26
highly probable, yet the plea of diminished responsibility or lack of mental capacity has not been
accepted by international criminal courts. A precedent for such denial was first established by the
International Criminal Tribunal of the Former Yugoslavia (‘ICTY’), in which the Trial Chamber
acknowledged the existence of a personal disorder but rejected that it shall mitigate responsibility
for Landžo, but it duly noted his young age at the relevant commission of the crime and the effect27
that the armed conflict in his hometown had inflicted upon him.
Former child soldier Dominic Ongwen was the first Lord Resistance Army (‘LRA’) member
and commander to be brought before the ICC, also the first former child soldier to be prosecuted in
such courts. To understand the extent of the Ugandan conflicts, it is to note that civilians living in
Uganda’s northern and southern side were divided by ethnic, linguistic, and socio-cultural divisions,
in which the former worked with the British before their independence, while the latter supplied
national manual labor and ended up to comprise the majority of ranks in the military. Such military
and political figure was Yoweri Museveni, and following his defeat in Uganda’s 1979 elections, he
claimed that the election result was fraudulent and waged a rebellion with his National Resistance
Army (‘NRA’). This strife turned into a civil war in which NRA was victorious and assumed control
of Uganda, and further sought vengeance against Acholi, the ethnic group of Northern Uganda, and
committed atrocities: child soldiers were widespread in their ranks, and its soldiers attacked villages
and engaged in burning, raping, kidnapping, looting, and killing of civilians.
Concerned with acts of violence by the government, Alice Auma, an Acholi ‘spirit medium’
started a civilian resistance movement. However, a figure also came to rise with Auma’s movement:
Joseph Kony. He started LRA and used Auma’s popularity to gain support, claiming that he was a
Elbert, Thomas and Schauer, Elisabeth, ‘The Psychological Impact of Child Soldiering’ in Martz, Erin, Trauma Rehabilitation After26
War and Conflict: Community and Individual Perspectives, New York (Springer Publishing, 2010), p. 311-360.
Prosecutor v. Mucic and others, (Judgment of the ICTY Trial Chamber) CC/PIU/364-E (16 November 1998), ¶1173-1186.27
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spokesperson of God, a cousin of Auma, and likewise also another ‘spirit medium’. By 2006, LRA’s
insurgency and their battle against the new government had resulted in the displacement of 95% of
Acholi’s population. It was noted that 1.7 million people lived in more than 200 internally displaced
persons camps throughout Northern Uganda.28
Dominic Ongwen was the leader of one of LRA’s four brigades, the Sinia Brigade. However,
Ongwen was abducted by the LRA at the age of 12, in which recruitment of children under 10 years
old was common practice and policy of the organisation that was supported by abundant evidence.29
ICC’s Pre-Trial Chambers expressly rejected the argument that since Ongwen was recruited as a
child, he shall be excluded of responsibility, to be entirely without legal basis. Even though ICC30
Statute remarked the possibility of other grounds for excluding criminal responsibility other than
those included in the Statute, legal scholars find it unlikely for individuals, no matter how much31
circumstances have influenced their decisions, to be able to absolve full responsibility when they
have committed serious international crimes.32
Ongwen argued the defence of duress under art. 33(1)(d) ICC Statute, yet this was rejected
by the Chambers since he did not fulfil its two elements. Since the possibility of later disciplinary
measures was not considered as imminent, there was no threat as required in paragraph (i). Even if
considering that membership of such group was not voluntary, duress was not regulated in a way to
create blanket immunity for its members. Escapes from LRA were not rare, hence Ongwen’s stay33
in the LRA could not be said to be beyond his control, in which this argument was heavily relied
upon by the Defence as the source of threat. The Chambers also declared, even if the decision had34
confirmed the existence of a threat, Ongwen did not intend to mitigate further harm as he was able
in his position, as required by the subsequent paragraph of the provision. This was illustrated by the
fact that he had brutally raped his four forced wives with ruthless regularity. Even if he could not
have avoided accepting them as wives, he could have avoided raping them.35
Despite not being evaluated in Ongwen’s case, the ICTY case law provided another possible
defence that could be invoked with respect to cases for former child soldiers. Article 33(1)(a) ICC
United States Agency for International Development, ‘Situation Report #3: Uganda — Complex Emergency’ (15 September 2006).28
Prosecutor v. Dominic Ongwen (Decision on the Confirmation of Charges) ICC-02/04-01/15-422-red (23 March 2016), ¶141.29
Ibid, ¶150.30
ICC Statute, art.31(1) and (3).31
Marković, Darija, ‘Child Soldiers: Victims or War Criminals?’ (Regional Academy of United Nations, University of Belgrade) (1432
December 2015), p. 12.
Prosecutor v. Ongwen (n.29), ¶153.33
Ibid, ¶154.34
Ibid, ¶155-156.35
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Statute provides a defence that concerns the mental state of the accused during the commission of
the crime. As such, the success of this defence relies upon two elements: abnormality of the mind,
and such abnormality shall substantially impair the ability of the accused to control his actions. In36
Landžo’s case, prosecutor experts failed to conclude a precise disorder. Even without a psychiatric
diagnosis, the Trial Chambers concluded that his mental state amounted to abnormality of the mind
in the sense of the first element. However, this did not lead to an acquittal since the Chambers was
in the view that he did not fulfil the second element in the mental incapacity test. The Chambers37
acknowledged partial impairment of his mental capacity, but decided that an abnormal state of mind
alone is neither a partial nor complete defence, but only a mitigating factor relevant in sentencing.38
In short, the war crime of child soldiers have been met with vigilance in the international
community. However, with much ambiguity in international law, prosecuting children for serious
violations of IHL remains an onerous challenge, since there is an obligation when administering
juvenile justice to always consider decisions in the best interests of the child. Yet it is also difficult
not to prosecute them, since grave violations of IHL should not be perpetuated with impunity. As
such, the ICC has adopted a different approach, in which the prosecution of Dominic Ongwen is the
first of its kind: Ongwen is an adult whom was abducted and recruited by the LRA when he was a
child. Since his case is still ongoing at the time this essay was written, it remains to be seen if there
may be additional defences to exclude child soldiers’ responsibility. So far, case-laws have analysed
the defence of insanity and duress. In both situations, their circumstances were not deemed severe
enough to justify an acquittal, but their mental state may be used as a factor to consider during the
sentencing stage to mitigate their punishment.
Word count: 2,211 words
Prosecutor v. Mucic and others (n.27), ¶1162-1172.36
Sparr, Landy F., ‘Personality Disorders and Criminal Law: An International Perspective’ (Journal of the American Academy of37
Psychiatry and the Law 37/2, 2009), p. 172.
Prosecutor v. Mucic and others (n.27), ¶1183-1184.38
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BIBLIOGRAPHY
A. Legislations
Rome Statute of the International Criminal Court, art. 8(2)(e)(vii), 26, 31(1), 31(3), 40(3).
United Nations Convention on the Rights of a Child, art. 1, 3, 25, 37(a), 38(2), 38(3), 40(1).
B. Cases
Paraguay v. Vargas-Areco (Judgment) Inter-American Court of Human Rights Series C No 155 (26
September 2006) ¶122.
Prosecutor v. Alex Tamba Brima and others (‘The AFRC Case’) (Judgment) SCSL-04-16-7 (20 July 2007)
¶274.
Prosecutor v. Charles Taylor (Judgment) SCSL-03-01-T (18 May 2012), ¶1479.
Prosecutor v. Dominic Ongwen (Decision on the Confirmation of Charges) ICC-02/04-01/15-422-red (23
March 2016), ¶141, 140, 153-156.
Prosecutor v. Mucic and others, (Judgment of the ICTY Trial Chamber) CC/PIU/364-E (16 November 1998),
¶1162-1186.
Prosecutor v. Thomas Lubanga Dyilo (Decision on Appeals) (1 December 2004), ¶319.
Prosecutor v. Thomas Lubanga Dyilo (Decision on the Confirmation of Charges) ICC-01/04-01/06 (29
January 2007) ¶246-247.
Prosecutor v. Thomas Lubanga Dyilo (Judgment Pursuant to Art. 74 of the Statute) (14 March 2012), ¶628.
Prosecutor v. Thomas Lubanga Dyilo (Prosecution Closing Submissions) (21 July 2001) ¶617.
C. Reports and other secondary sources
Boothby, Bill, ‘And for Such Time As: The Dimension to Direct Participation in Hostilities’ (Journal of
International Law and Politics 42/3, 2010) p. 741-768.
Committee on the Rights of the Child, General Comment No. 10 (2007): Children’s Right in Juvenile Justice,
¶30, 32, 77
Draft Statute of the International Criminal Court, Report of the Preparatory Committee on the Establishment
of an International Criminal Court’ (14 April 1998) UN Doc. A/CONF./183/2/Add.1, ¶21.
Elbert, Thomas and Schauer, Elisabeth, ‘The Psychological Impact of Child Soldiering’ in Martz, Erin,
Trauma Rehabilitation After War and Conflict: Community and Individual Perspectives, New York (Springer
Publishing, 2010), p. 311-360.
Human Rights Watch, ‘Congo: Don’t execute Child Soldiers’ (2 May 2001), <https://www.hrw.org/news/
2001/05/02/congo-dont-execute-child-soldiers>, accessed on 20 November 2017
Marković, Darija, ‘Child Soldiers: Victims or War Criminals?’ (Regional Academy of United Nations,
University of Belgrade) (14 December 2015), p. 12.
Sparr, Landy F., ‘Personality Disorders and Criminal Law: An International Perspective’ (Journal of the
American Academy of Psychiatry and the Law 37/2, 2009), p. 172.
United Nations Security Council, ‘Report of the Secretary General on the establishment of a Special Court
for Sierra Leone’ (4 October 2000) UN Doc S/2000/915, ¶ 14.
United States Agency for International Development, ‘Situation Report #3: Uganda — Complex Emergency’
(15 September 2006).
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