Role of the International Criminal Court

Child recruitment as a war crime

In the past two decades, the international community has taken a number of crucial initiatives to end impunity for grave violations against children. The Rome Statute of 1998, which established the International Criminal Court (ICC) in 2002, recognized “conscripting or enlisting children under the age of 15 and using them to participate actively in hostilities” as a war crime.

Cases before the ICC

Since the Statute came into force, crimes committed against children during armed conflict have figured prominently in indictments issued by the ICC in the Democratic Republic of the Congo, Uganda, and the Central African Republic. In the first case before the Court, Thomas Lubanga Dyilo, a former warlord from eastern DRC was found guilty on the charges of recruiting and using child soldiers under the age of 15 in the Ituri conflict from 2002 to 2003. A reparation and sentencing hearing is expected to be held within the next few months.

Impact of the Court

Though these are only a few selected cases at the international level, they have sent out the necessary warning signal and serve as a useful deterrent against child recruitment in armed conflicts. The Lubanga trial is the first case before the ICC and will likely be the first to be completed.

Special Representative as an expert witness in the Lubanga trial

In 2008, the Special Representative submitted, as an expert witness, an amicus curiae to the ICC on the Lubanga case, where she argued that:

  1. The distinction between voluntary enlistment and forced recruitment is a distinction without meaning in the context of armed conflict because even the most voluntary of acts can be a desperate attempt to survive by children with a limited number of options in the context of war;
  2. Using children to participate actively should be interpreted broadly since children are required to play multiple support roles including as spies, messengers, porters, scouts, and cooks,  that place them in danger;
  3. Sexual slavery and violence should be regarded as a form of being used actively in hostilities to give girls access to justice and reintegration programs.

The ICC in response, recognized in its judgement, that the distinction between voluntary and forced recruitment is artificial and recognized the broader interpretation of the definition of child soldiers to include girls and boys who serve in support roles. In this sense, the judgement set important international jurisprudence on the crime of recruiting child soldiers and set a precedent for future cases and prosecutions in national courts. The Court did not decide on the issue of sexual violence since there were no charges to that effect.