International Criminal Responsibility and the Prosecution of Individuals for the Enlistment, Conscription and Use of Child Soldiers

The issue of accountability for international crimes committed by children is one of the most complex legal and moral conundrums in international criminal justice. While children are excluded from the jurisdiction of international criminal courts, they can be sometimes the authors of heinous crimes, including international crimes. In the first section, the author examines whether prosecution at national level may be a solution in these cases. He then discusses if a minimum age of criminal responsibility should be agreed at international level and, if so, what this age should be. The issue of whether child soldiers possess the necessary mens rea for the commission of international crimes is also discussed. In the final section, the author suggests that more emphasis should be put on the accountability of those who use children to commit these crimes, notably through the legal concept of indirect participation, included in the icc Statute.

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Can Duress Exclude Criminal Responsibility of Former Child Soldiers? The Case of Dominic Ongwen Before the International Criminal Court

Studia Iuridica ◽

10.5604/01.3001.0013.9612 ◽

2020 ◽

Vol 82 ◽

pp. 78-100

Author(s):

Patryk Gacka

Keyword(s):

International Criminal Court ◽

International Criminal ◽

Criminal Responsibility ◽

Child Soldiers ◽

Negative Answer ◽

Criminal Court ◽

Armed Conflicts ◽

International Criminal Law ◽

The Social ◽

Former Child Soldiers

The phenomenon of child soldiers encompasses up to half a million of adolescents around the world and is – without a doubt – one of the most pressing humanitarian problems of contemporary armed conflicts. This article aims at addressing this issue by examining an ongoing trial of Dominic Ongwen before the International Criminal Court. The first part is dedicated to the description of Dominic Ongwen’s life through the prism of the ‘victim’ and ‘perpetrator’ labels. In this respect I try to prove that in many situations these two labels do not fit the social reality which they are supposed to classify or categorize. In the second part, I refer to the taxonomy of defences, justifications, excuses and grounds for excluding criminal responsibility in domestic and international criminal law. I also analyse concepts of duress and necessity as they are codified in the Rome Statute of the International Criminal Court. On these basis, I give a negative answer to the question if Dominic Ongwen will be able to effectively invoke one of these defences in order to limit or exclude his criminal responsibility, while in conclusions I also provide a short assessment of ‘the law as it is’.

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FOMER CHILD SOLDIERS: PRODUCT OF ARMED CONFLICTS AND HOW THE INTERNATIONAL CRIMINAL COURT FAILS TO SEE ITS SIGNIFICANCE

Padjadjaran Journal of International Law ◽

10.23920/pjil.v3i2.319 ◽

2019 ◽

Vol 3 (2) ◽

pp. 181-201

Author(s):

Dino Panji Pananjung ◽

Sigar Aji Poerana

Keyword(s):

International Criminal Court ◽

Rome Statute ◽

International Criminal ◽

Criminal Responsibility ◽

Armed Forces ◽

Child Soldiers ◽

Criminal Court ◽

Armed Conflicts ◽

Former Child Soldiers ◽

Keywords Child

AbstractIn armed conflicts, children are often kidnapped and forced to become child soldiers, they are also given forced indoctrination (by violence and threats) and are taught to commit crimes, such as looting and murder. Disobeyed children and those who try to escape will be punished in the form of torture or even being executed in front of other children's soldiers as a lesson so others will not follow their step. When they did not serve the armed forces anymore or they grew up and no longer held child status, they were given the title of "former child soldiers". These former child soldiers might still live in rebellious environments and commit serious crimes including international crimes under jurisdiction of International Criminal Court when they grow up. This research argues whether the International Criminal Court considers the historical status of the perpetrators who are former child soldiers as mitigating factor of their punishment. The research method used is the juridical normative approach. The result of this research shows the International Criminal Court has never considered the history of international criminals as child soldiers. However, the International Criminal Court may use the consideration beside what has been regulated in Rome Statute, such as Article 21(3). This is also based on the Judge's right for discretion in the Rome Statute to adjudicate, as what we can see in the Case of Omar Khadr. Keywords: Child Soldier, Criminal responsibility, International Criminal Court, Judgment and Sentencing, Rome Statute. AbstrakDalam konflik bersenjata, anak seringkali diculik dan dipaksa menjadi tantara anak, mereka juga didoktrin paksa (melalui kekerasan atau ancaman) serta diajakan untuk melakukan kejahatan seperti menjarah dan membunuh. Mereka yang tidak menurut dan yang mencoba melarikan diri akan dihukum dengan disiksa di hadapan para tantara anak lainnya sebagai contoh agar tidak ditiru oleh anak lainnya. Mereka disebut “mantan tantara anak” setelah tidak lagi menjadi teantara atau telah dewasa. Tidak menutup kemungkinan ketika dewasa mereka hidup dengan jiwa pemberontak dan melakukan kejahatan serius bahkan kejahatan internasional yang menjadi jurisdiksi Mahkamah Pidana Internasional. Penelitian ini membahas apakah Mahkamah Pidana Internasional mempertimbangkan riwayat seorang pelaku kejahatan internasional yang menjadi seorang mantan tentara anak untuk meringankan hukuman mereka. Metode penelitian yang digunakan adalah yuridis normatif. Hasil penelitian menunjukkan bahwa praktik Mahkamah Pidana Internasional tidak pernah mempertimbangkan latar belakang pelaku kejahatan internasional sebagai mantan tentara anak. Namun, Hakim Mahkamah Pidana Internasional dapat menggunakan ketentuan diluar Statuta Roma berdasarkan pasal 21(3). Hal ini juga didasari pada adanya diskresi Hakim untuk memutus dan mengadili diluar yang diatur di dalam Statuta Roma, seperti halnya Kasus Omar Khadr. Kata Kunci: Mahkamah Pidana Internasional, Pemidanaan, Pertanggungjawaban Pidana, Statuta Roma, Tentara Anak.

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Law, Politics, the Age of Responsibility, and the Problem of Child Soldiers

Law Culture and the Humanities ◽

10.1177/1743872116660777 ◽

2016 ◽

Vol 16 (1) ◽

pp. 42-52 ◽

Cited By ~ 1

Author(s):

Jill Stauffer

Keyword(s):

Political Theory ◽

International Criminal ◽

Criminal Responsibility ◽

Child Soldiers ◽

Criminal Court ◽

Protracted Conflict ◽

Legal Standards ◽

Legal Response ◽

Interdisciplinary Study ◽

Political Realities

This article considers debates about criminal responsibility for child soldiers as a lens through which we can view intersections between legal and political theory, legal and political practice, and interdisciplinary study of law. The case of Dominic Ongwen, victim and perpetrator of the same crimes, currently before the International Criminal Court, elucidates some challenges to the contemporary model of legal response to complex protracted conflict. The argument discusses how legal standards, political realities, theories of responsibility, and widespread assumptions about time and aging interact in this field of judgment, and aims to point the reader toward broader possibilities for retribution and recovery.

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Individual Criminal Responsibility in International Human Rights Law: The Contribution of the International Criminal Court

Carleton Review of International Affairs ◽

10.22215/cria.v1i0.102 ◽

1970 ◽

Vol 1 ◽

Author(s):

Justin Mohammed

Keyword(s):

International Criminal Court ◽

International Criminal ◽

Criminal Responsibility ◽

International Criminal Tribunal ◽

Criminal Court ◽

Added Value ◽

Crimes Against Humanity ◽

International Human Rights Law ◽

The Road ◽

Individual Criminal Responsibility

The road to developing an international institutional capacity to prosecute crimes against humanity, war crimes, and genocide has been a long one, and has in many ways concluded with the establishment of the International Criminal Court (ICC). By looking at the Nuremberg and Tokyo Tribunals, the International Criminal Tribunal for Rwanda (ICTR) and International Criminal Tribunal for the Former Yugoslavia (ICTY), as well as the ICC, this paper traces the evolution of the concept of individual criminal responsibility to its present incarnation. It argues that while the ICC presents its own unique ‘added value’ to the prosecution of international criminals, its application of justice continues to be biased by the influence of powerful states.

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Proportionality in Refugee Exclusion

Journal of International Criminal Justice ◽

10.1093/jicj/mqaa056 ◽

2020 ◽

Author(s):

Elif Gökşen

Keyword(s):

International Criminal ◽

Criminal Responsibility ◽

War Crimes ◽

International Criminal Law ◽

Guidance Document ◽

Refugee Status ◽

High Commissioner ◽

State Practice ◽

Proportionality Test ◽

Individual Criminal Responsibility

Abstract In the increased discussions about international security and terrorism, the application of the exclusion clauses in Article 1 F of the 1951 Refugee Convention has become a topical and controversial issue. The United Nations High Commissioner for Refugees (UNHCR) advises states to apply a proportionality test to weigh the gravity of the crime against the consequences of exclusion for cases concerning serious non-political crimes and war crimes. However, there is no uniform approach in state practice. Also, the concept of ‘gravity of the crime’ is not clarified in any guidance document of the UNHCR. Relying on the different applications of Article 1 F of the 1951 Convention, this article questions whether the proportionality analysis is actually necessary for determining the exclusion, and how should the gravity of the crime be interpreted in such cases. First, the present article argues that the proportionality analysis is compatible with the overriding humanitarian aims of the 1951 Convention and that this analysis should be applicable to all the crimes listed in Article 1 F. Secondly, it demonstrates that the concept of ‘gravity of the crime’ should be interpreted by referring to the relevant concepts developed in international criminal law, and by considering the extent of the person’s individual criminal responsibility. This article asserts that exclusion from refugee status causes serious consequences, which sometimes might be heavier than criminal punishment. Therefore, Article 1 F should be applied with the utmost attention and sensitivity.

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Individual Criminal Responsibility before the International Criminal Court

International Criminal Law Review ◽

10.1163/157181212x616522 ◽

2012 ◽

Vol 12 (1) ◽

pp. 1-70 ◽

Cited By ~ 4

Author(s):

Barbara Goy

Keyword(s):

International Law ◽

International Criminal Court ◽

Ad Hoc ◽

International Criminal ◽

Criminal Responsibility ◽

International Criminal Tribunal ◽

Case Law ◽

Criminal Court ◽

Former Yugoslavia ◽

Individual Criminal Responsibility

For more than 15 years the two ad hoc Tribunals, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), have interpreted the requirements of different forms of individual criminal responsibility. It is thus helpful to look at whether and to what extent the jurisprudence of the ICTY/ICTR may provide guidance to the International Criminal Court (ICC). To this end, this article compares the requirements of individual criminal responsibility at the ICTY/ICTR and the ICC. The article concludes that, applied with caution, the jurisprudence of the ICTY/ICTR – as an expression of international law – can assist in interpreting the modes of liability under the ICC Statute. ICTY/ICTR case law seems to be most helpful with regard to accessorial forms of liability, in particular their objective elements. Moreover, it may assist in interpreting the subjective requirements set out in Article 30 ICC Statute.

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