Special Court for Sierra Leone

Prosecutor v. Sam Hinga Norman, Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), Case No. SCSL-2004-14-AR72 (E), Judgement of 31 May 2004

31 May 2004


(Moinina Fofana intervening)
Case Number SCSL-2003-14-AR72(E)

Note: In accordance with the practice of the Special Court in some cases of public interest, importance or complexity, the following summary has been prepared to accompany the announcement of the reasoned decision today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court's reasons is that contained in the published decision, which will be made available on the Court's website in due course, together with this summary.

Decision of the majority (read out by Justice Winter):

1. Under Article 4 of its Statute, the Special Court has the power to prosecute persons who committed serious violations of international humanitarian law including:

c. Conscripting or enlisting children under the age of 15 years into armed forces or groups using them to participate actively in hostilities ("child recruitment").

The question raised by the Preliminary Motion is whether the crime as defined in Article 4(c) of the Statute was recognised as a crime entailing individual criminal responsibility under customary international law at the time of the acts alleged in the indictments against the accused, which date back to November 1996.

2. To answer this question, international conventions and international custom have to be scrutinized. We have considered several key international instruments, including the Geneva Conventions and the Convention on the Rights of the Child.

3. Prior to November 1996, the prohibition on child recruitment had crystallised as customary international law, as demonstrated by the widespread recognition and acceptance of the norm prohibiting child recruitment in these international instruments, reiterated in the 1990 African Charter on the Rights and Welfare of the Child.

4. The central question which must then be addressed is whether the prohibition on child recruitment also entailed individual criminal responsibility by 1996, so that the principle of non-retroactivity is not breached. The protection of children is one of the fundamental guarantees articulated in Additional Protocol II and reflected in the Special Court Statute. As can be verified in numerous reports of various human rights organizations, the practice of child recruitment bears the most atrocious consequences for the children. Serious violations of fundamental guarantees lead to individual criminal liability. Therefore the recruitment of children was already a crime by the time of the adoption of the 1998 Rome Statute for the International Criminal Court , which codified and ensured the effective implementation of an existing customary norm relating to child recruitment rather than forming a new one.

5. A norm need not be expressly stated in an international convention for it to crystallize as a crime under customary international law. Furthermore, it is not necessary for the individual criminal responsibility of the accused to be explicitly stated in a convention for the provisions of the convention to entail individual criminal responsibility under customary international law. Further support for these findings is found in the national legislation of states which includes criminal sanctions as a measure of enforcement.

6. Therefore, child recruitment was criminalized before it was explicitly set out in treaty law and certainly by the time frame relevant to the indictments. The principle of legality and the principle of specificity are both upheld.

7. For these reasons the Preliminary Motion is dismissed.

Separate Opinion of Justice King:

8. Justice King agreed, but added in a Separate Opinion that the Defence had failed in its duty to explain what it meant by "at the times relevant to the Indictment" and to particularise in precise, unequivocal and unambiguous terms what exactly it was requesting the Court to declare. For this reason, Justice King felt unable to grant the declaration requested.

9. Justice King cited Articles 2 and 22 of the African Charter on the Rights and Welfare of the Child promulgated in 1990 stating that those provisions spoke for themselves.

10. Justice King added that because of some of the language used, he was unable to appreciate the reasoning of Justice Robertson.

Dissenting Opinion of Justice Robertson:

11. Justice Robertson (who was unable to be present in Court for the delivery of the Decision) appended a Dissenting Opinion, being in "no doubt that the crime of non-forcible enlistment did not enter international criminal law until the Rome Treaty [for the International Criminal Court] in July 1998". Consequently, he "would grant a declaration to the effect that [the Applicant must not be prosecuted for any offence of enlistment, under 4(c), alleged to have been committed before the end of July 1998".

12. Justice Robertson traced the preparatory work leading to the adoption of the Special Court Statute and argued that the state of international law in 1996 in respect of child enlistment was unclear to the UN Secretary-General himself. He pointed out that the question of whether an act was criminalised should be carefully separated from whether it should be criminalised and considered in depth the principle of 'no punishment without law'. He went on to look at customary international law and emphasised that the question was whether child recruitment was a criminal law prohibition under customary international law by 1996. He then traced the relevant treaty law and developments up to 1996. He found that the Rome Statute was a "landmark in international criminal law" and that with its adoption, child recruitment crystallized as a crime entailing individual responsibility.

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