Abstract
The text of the Rome Statute leaves many key elements of the crime of child soldier recruitment to judicial interpretation, and this thesis asks how the international legal institutions - namely the Special Court for Sierra Leone and the International Criminal Court - have handled the challenges presented by this new crime. These challenges have been identified as formulating a clear mens rea and actus reus, establishing the appropriate modes of liability, determining the scope of the defence of mistake, and accounting for cultural relativism concerns. It is argued that the two courts have been, for the most part, successful in combatting these challenges, while giving effect to the provisions of the Rome Statute, and ensuring that child protection is the paramount concern.First, they have confirmed that the voluntary enlistment of a child serves as no defence: this crime can be committed even when a child volunteers. Second, the inclusion of negligence provisions and the mens rea standard of dolus directus of the second degree ensure that the burden of responsibility lies on recruiters to stringently verify the ages of young recruits. Third, the extremely limited circumstances in which the defence of mistake of law can be pleaded gives the crime a status which is beyond question. And fourth, the approach of the two institutions has been relatively uniform regarding culture, with a strong reluctance to allow cultural considerations to play a role in the determination of the crime's scope.
However, the two institutions have struggled with the issue of the appropriate modes of liability for this crime, rendering this issue the most troublesome for the judicial institutions. There is also divergence on the question of prosecuting combatants. In addition, it was not until the recent ICC Lubanga judgment that a case-by-case assessment was recommended to determine whether a role played by a given child soldier constitutes 'active participation' and thus gives rise to criminal liability, accounting for variations in conflicts and giving effect to the intention of the criminal prohibition.
| Date of Award | Dec 2012 |
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| Original language | English |
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| Supervisor | Rory O'Connell (Supervisor) |