* This document was reproduced and reformatted from the text provided by the Special Court for Sierra Leone

1 Prosecution Response to Fourth Defence Preliminary Motion on Lack of Jurisdiction (Child Recruitment), 7 July 2003 (“Prosecution Response“).

2 Reply — Preliminary Motion based on Lack of Jurisdiction: Child Recruitment, 14 July 2003 (“Defence Reply“).

3 Order pursuant to Rule 72(E): Preliminary Motion on Lack of Jurisdiction: Child Recruitment, 17 September 2003.

4 Decision on Application by the University of Toronto International Human Rights Clinic for Leave to File Amicus Curiae Brief, 1 November 2003.

5 Fourth Defence Preliminary Motion based on Lack of Jurisdiction (Child Recruitment): Amicus Curiae Brief of University of Toronto International Human Rights Clinic and Interested International Human Rights Organisations, 3 November 2003 (“Toronto Amicus Curiae Brief).

6 Additional Written Submissions of the Prosecution — Recruitment and Use of Child Soldiers, 24 November 2003.

7 Order on the Appointment of Amicus Curiae, 12 December 2003.

8 Fourth Defence Preliminary Motion based on Lack of Jurisdiction (Child Recruitment): Amicus Curiae Brief of the United Nations Children's Fund (UNICEF), 21 January 2003 (“UNICEF Amicus Brief).

9 Reply to the Prosecution Response to the Motion on Behalf of Moinina Fofana for Leave to Intervene as an Interested Party in the Preliminary Motion filed by Mr. Norman on Lack of Jurisdiction: Child Recruitment and Substantive Submissions, 3 November 2003 (“Fofana — Reply to the Prosecution Response to the Motion“).

10 Prosecution Response, para. 11.

11 Cape Town Principles and Best Practices on the Recruitment of Children into the Armed Forces and on Demobilization and Social Reintegration of Child Soldiers in Africa, Symposium of the NGO working group on the Convention of the Rights of the Child and UNICEF, 30 April 1997, para.4.

12 Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, S/2000/915,4 October 2000, paras 17-18 and Enclosure, Article 4(c).

13 UN Doc. A/CONF.183/9, 17 July 1998, in force 17 July 2002.

14 Letter dated 22 December 2000 from the President of the Security Council addressed to the Secretary-General, S/2000/1234, 22 December 2000, para.3.

15 Fofana — Reply to the Prosecution Response to the Motion, para. 13. See Transcript of 5-6 November 2003, para.95.

16 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, August 12, 1949, 75 UNTS (1950).

17 UNICEF Amicus Brief, para.22.

18 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 1125 U.N.T.S. 609 (entered into force 7 December 1978) (“Additional Protocol I“); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 1125 U.N.T.S. 3 (entered into force 7 December 1977) (“Additional Protocol II“).

19 UNICEF Amicus Brief, para.22.

20 Available at www.child-soldiers.org and annexed to the UNICEF Amicus Brief.

21 Convention on the Rights of the Child, 20 November 1989, 1577 U.N.T.S. 3.

22 Available at www.child-soldiers.org and annexed to the UNICEF Amicus Brief.

23 Edward T. Swaine, Rational Custom, Duke Law Journal, 559, 567-68 (December 2002).

24 Available at www.child-soldiers.org and annexed to the UNICEF Amicus Brief.

25 Prosecutor v. Dusko Tadić, Case No.IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction. 2October 1995, (“Tadić Jurisdiction Decision”), para.94.

26 African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990), adopted 11 July 1990, entered into force 29 November 1999.

27 Toronto Amicus Brief, para. 13.

28 Jean-Marie Henckaerts, Binding Armed Opposition Groups through Humanitarian Treaty Law and Customary Law in Relevance of International Humanitarian Law to Non-state Actors, Proceedings of the Brugge Colloquium, 25-26 October 2002.

29 See F. Kalsoven and L. Zegveld, Constraints on the Waging of War, An Introduction to International Humanitatian Law, (International Committee of the Red Cross, March 2001), p. 75.

30 Ibid.

31 Toronto Amieus Brief, para. 13.

32 UNICEF Amieus Brief, para.49.

33 Prosecutor v Hadžihasanović, Alagić and Kubura, Case No. IT-01 -47-PT, Decision on Joint Challenge to Jurisdiction, 12 November 2002, para.62.

34 Ibid.

35 Tadić Jurisdiction Decision, para.94.

36 UNICEF Amieus Brief, para.64.

37 UNICEF Amieus Brief, para.65.

38 Toronto Amieus Brief, paras 20 and 21.

39 Security Council Resolution S/RES/1071 (1996), 30 August 1996 para. 9.

40 This is true both at the stage of recruitment and at the time of release, and also for the remainder of the child's life.

41 Fofana — Reply to the Prosecution Response to the Motion, para. 19, referring to the Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, 4 October 2000, S/2000/915, para.17.

42 Tadic Jurisdiction Decision, paras 86-93.

43 Statute of the International Criminal Tribunal for Rwanda, S/RES/935 (1994), 1 July 1994 (as amended), Article 4.

44 Prosecutor v Akayesu, Case No. ICTR-96-4-T, Judgment, 2 September 1998, paras 616-17.

45 Ibid, para.616.

46 Ibid.

47 See Tadić Jurisdiction Decision.

48 See UNICEF Amieus Brief, para.34.

49 Concluding observations of the Committee on the Rights of the Child: Uganda, 21 October 1997 upon submission of the Report in 1996, CRC/C/15/Add.80.

50 Article 8(2)(b)(xxvi).

51 Article 8(2)(e)(vii).

52 UN Doc. PCNICC/2000/l/Add.2(2000). Elements of Article 8(2)(e)(vii) War crime of using, conscripting and enlisting children: (1) The perpetrator conscripted or enlisted one or more persons into an armed force or group or used one or more persons to participate actively in hostilities. (2) Such person or persons were under the age of 15 years. (3) The perpetrator knew or should have known that such person or persons were under the age of 15 years. (4) The conduct took place in the context of and was associated with an armed conflict not of an international character. (5) The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

53 Preliminary Motion, para.9.

54 Report of the International Law Commission on the work of its forty-sixth session, UN General Assembly Doc. A/49/355, 1 September 1994. Summary of the Proceedings of the Preparatory Committee during the period 25 March-12 April 1996, Annex I: Definition of Crimes.

55 UNICEF Amieus Brief, para.86.

56 Working Group on Definitions and elements of Crimes, Reference Paper on War Crimes submitted by Germany, 12 December 1997.

57 Herman Von Hebel and Darryl Robinson, Crimes within the Jurisdiction of the Court, in R. Lee (ed), The International Criminal Court: The Making of the Rome Statute, chapter 2, pp. 117-18.

58 Notably, the United States, despite not having ratified the CRC, has recognized the Convention as a codification of customary international law. See Toronto Amieus Brief para.24 and note 41.

59 UN Doc. A/54/RES/263, 25 May 2000, entered into force 12 February 2002 (“CRC Optional Protocol II“).

60 Preliminary Motion, para.7.

61 Tadić Jurisdiction Decision, para.128.

62 The Trial of Major War Criminals: Proceedings of the International Military Tribunal Sitting at Nuremberg Germany, Part 22, (1950) at 447.

63 See Prosecutor v. Tadić, Case No. IT-94-1, Decision on Defence Motion on Jurisdiction, 10 August 1995, para. 70.

64 Meron, Theodor, International Criminalization of Internal Atrocities, (1995) 89 AJIL 554, p. 562.CrossRefGoogle Scholar

65 Cassese, Antonio, International Criminal Law (Oxford University Press, 2003), p. 145.Google Scholar

66 UN Doc. PCNICC/2000/l/Add.2(2000).

67 During the 57^thsession of the Commission of Human Rights, The Special Representative of the Secretary General, Mr. Olara A. Otunnu addressed the Assembly with regard to the Graça Machel Report. He said: “Over the past 50 years, the nations of the world have developed and ratified an impressive series of international human rights and humanitarian instruments. […] However, the value of these provisions is limited to the extent to which they are applied.” Rights of the Child, Children in Armed Conflict, Interim Report of the Special Representative of the Secretary-General, Mr. Olara A. Otunnu, submitted to the Economic and Social Council pursuant to General Assembly Resolution 52/107, E/CN.4/1998/119, 12 March 1998, paras 14-15.

68 The Defence asserted that “the offence does not appear in the criminal calendar of any national state, there is not a single country in the world that makes this a crime”. See Transcript of 5-6 November 2003, paras 284 and 338 (referring to G. Goodwin-Gill and I Cohen, Child Soldiers (Oxford University Press, 1994).

69 International Criminal Court (Consequential Amendments) Act, 2002 No. 42 (Cth).

70 Norway, Military Penal Code as amended (1902), para.108.

71 See Child Soldiers Global Report 2001, published by the coalition to stop the Use of Child Soldiers. Available at www.child-soldiers.org and annexed to the UNICEF Amicus Brief.

72 Ibid.

73 UNICEF Amicus Brief, para.47.

74 Ireland, Geneva Conventions Act as amended (1962), Section 4(1) and (4).

75 Argentina, Draft Code of Military Justice (1998), Article 292, introducing a new article 876(4) in the Code of Military Justice, as amended (1951).

76 Norway, Military Penal code as amended (1902), para.108.

77 Austrian legislation sets the minimum age for recruitment at 18 in Wehrgesetz 2001, BGB1.1 Nr. 146/2001 as amended in BGB1.1 Nr. 137/2003 and provides for criminal sanctions in Strafgesetzbuch, BGB1. Nr. 60/1974 in Articles 27 and 302.

78 German legislation sets the minimum age for compulsory recruitment at 18 in Wehrpflichtgesetz, 15 December 1995 (as amended), para.l and provides for a sanction in Wehrstrafgesetz, 24 May 1974, para. 32.

79 Decree S. No[79]20, Article 1, states that “The Afghan citizen volunteer to join the National Army should […] be aged between 22-28 years.” Art. 110 Penal Law for Crimes of Civil Servants and Crimes against Public Welfare and Security, 1976 states that “An official who deliberately registers a minor as an adult or vice-versa on his nationality card, court records or similar documents shall be punishable […]“

80 Article 2 of the The Military Service Law (Amended 20 November 1935 — 2248/Article 1) states that “The military age shall be according to the age of every male as recorded in his main civil registration [… ] starting on the first day of January in the year in which he becomes twenty […]. The Turkish Penal Code( Amended 12 June 1979 — 2248/Article 19) states in Article 240 that “a civil servant who has abused his/her office for any reason whatsoever other than the circumstances specified in the law shall be imprisoned for one year to three years […] He/she shall also be disqualified from the civil service temporarily or permanently.“

81 According to the Education (School Leaving Date) Order\991, made under the Education Act 1996, section 8(4), a child may not legally leave school until the last Friday in June of the school year during which they reach the age 16. According to HM Armed forces Enquiry Questionnaire, AFCO Form 2, January 2000, Armed forces do not recruit those under the age of 16 and the recruitment process, including selection, medical examination and obtaining parental consent may only begin at 15 years and nine months. Rachel Harvey, Child soldiers in the UK: Analysis of recruitment and deployment practices ofunder-18s and the CRC (June 2002), pl3, note 73.

82 Loi No. 62 132 sur le recrutement de I'armée. Articles 7 and 9, 29 June 1962.

83 Loi f é d é rale sur l'arm é e et l'administration militaire, Article 131, 3 February 1995.

84 Prosecutor v. Tadić, Case No. IT-94-1, Decision on Defence Motion on Jurisdiction, 10 August 1995, para. 70.

85 Cassese, Antonio, International Criminal Law, (Oxford University Press, 2003), p. 157.Google Scholar

86 Daniel Augenstein, Ethnische Saüberungen in ehemaligen Jugoslawien — Rechtliche Aspekte, Seminar “Zwangsumsiedlungen, Deportationen und “ethische Saüberungen” im 20. Jahrhundert”, Sommersemester 1997, p.18.

87 Akehurst, Michael, Custom As a Source of International Law, The British Year Book of International Law 1974-1975 (Oxford at the Clarendon Press, 1977), p. 16.Google Scholar

88 Ibid, p. 18.

89 Contrary to the Defence Reply, para.13.

90 Counsel stated: “I would not say please do, but you can do it, it is not a crime under international law. As long as they [are] not members of warring factions you can do it…”. See Transcript of 5-6 November 2003, para.384.

91 The Initial Report of States Parties: Sierra Leone 1996 CRC/C/3/Add.43 para.28.

92 Toronto Amicus Brief, para.69.

1 Prosecutor v Samuel Hinga Norman, Moinina Fofana andAllieu Kondewa, Case No. SCS1-2004-14-1, Indictment, 4 February 2004.

2 Prosecutor v Samuel Hinga Norman, Case No. SCSL-2004-08-I, Indictment, 7 March 2003.

3 Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, S/2000/915,4 October 2000, paras 15-18 and Enclosure.

4 Rome Statute, UN Doc. A/CONF.183/9, 17 July 1998, in force 17 July 2002, Articles 8(b)(xxvi) and 8(e)(vii).

5 Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, S/2000/915, 4 October 2000, para. 17.

6 Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, S/2000/915,4 October 2000, paras 17-18.

7 Letter dated 22 December 2000 from the President of the Security Council addressed to the Secretary-General, S/2000/1234, 22 December 2000, para. 3.

8 See e.g. Human Rights Watch, Getting Away with Murder, Mutilation, Rape: New Testimony from Sierra Leone, July 1999; US Department of State, Country Reports on Human Rights Practices, 1999: Sierra Leone, 25 February 2000; Amnesty International. Sierra Leone: Childhood —A Casualty of Conflict, 31 August 2000.

9 Graca Machel: The Impact of War on Children, (UNICEF, 2001), pp. 8-9.

10 Report of ICC Preparatory Committee, A/CONF/183/2/ Add.l, 14 April 1998.

11 In Act 4, Scene 7, the French attack on the boys in the baggage train was “expressly against the law of arms”, according to Captain Fluellan. See Theodor Meron, “Shakespeare's Henry V and the Law of War”, in War Crimes Law Comes of Age, (Oxford 1998), p 52.

12 International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR, 21st Sess., Supp. No. 16 at 52, U.N. Doc. A/6546 (1966) (entered into force 23 March 1976).

13 Prosecution Response, para. 17.

14 E.g. SW v UK, ECHR, Series A, vol. 335-B, 22 November 1995.

15 A. Cassese, International Criminal Law, (Oxford, 2003), pp. 142-43.

16 Ibid, p.147.

17 The European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 U.N.T.S. 222.

18 International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR, 21st Sess., Supp. No. 16 at 52, U.N. Doc. A/6546 (1966) (entered into force 23 March 1976).

19 Inter-American Convention on Human Rights, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123 (entered into force July 18, 1978), reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System 25, Doc. No. OEA/Ser.L.V./II.82 doc. 6 rev. 1 (1992).

20 African Charter on Human and Peoples’ Rights, adopted on 27 June 1981, OAU Doc. CAB/LEG/67/3/Rev.5.

21 Geneva Convention (III) Relative to the Treatment of the Prisoners of War, 12 August 1949, 75 U.N.T.S. 135 (1950).

22 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS (1950).

23 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 1125 U.N.T.S. 609 (entered into force 7 December 1978) (“Additional Protocol I“).

24 Rome Statute of the International Criminal Court, July 17, 1998, UN Doc. A/CONF.183/9* (1998).

25 Cassese, A., International Criminal Law, (Oxford, 2003) p. 149.Google Scholar

26 Ibid, p. 152.

27 Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, S/2000/915,4 October 2000, para. 17.

28 The Paquete Habana (1900), 175 US 677.

29 Ibid, p. 686 (emphasis added).

30 Prosecutor v Dusko Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, passage no..

31 Ibid, para.94.

32 Ibid, para 128.

33 Ibid, paras 120-124.

34 Ibid, para. 124.

35 Graça Machel: The Impact of War on Children, (UNICEF, 2001), p. 7.

36 Universal Declaration of Human Rights, G.A. Res. 217A (III), 3 U.N. GAOR at 17, U.N. Doc. A/810 at 71 (1948), Article 25.

37 Gillick v West Norfolk and Wisbech Area Health Authority, [1986] AC 112, HL.

38 Convention on the Rights of the Child, 20 November 1989, 1577 U.N.T.S. 3.

39 Additional Protocol I; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 1125 U.N.T.S. 3 (entered into force 7 December 1977).

40 African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990), adopted 11 July 1990, entered into force 29 November 1999.

41 Thompson, Bankole, Africa's Charter on Children's Rights: A Normative Break with Cultural Traditionalism, 41 Int'l. &Comp. L.Q. (April 1992) 432, 433.Google Scholar

42 Ibid, p. 432.

43 Ibid, pp 433, 443-44.

44 Emphasis added.

45 The Initial Report of States Parties: Sierra Leone 1996 CRC/C/3/Add.43 para. 28.

46 By The Coalition to Stop the Use of Child Soldiers see UNICEF Appendix, pll.

47 Schabas, W., An Introduction to the International Criminal Court, (Cambridge, 2001), p. 50.CrossRefGoogle Scholar

48 Cassese, A., Gaeta, P., Jones, J., The Rome Statute of the International Criminal Court — A Commentary, (Oxford, 2002), p. 416.Google Scholar

49 Preamble to the Rome Statute of the International Criminal Court, July 17, 1998, UN Doc. A/CONF.183/9* (1998).

50 “Crimes Within the Jurisdiction of the Court”, Herman von Hebel and Darrel Robinson in The International Criminal Court: Making of the Rome Statute, ed. Roy Lee; Chapter II at pp. 117-18.

51 Columbia, Argentina, Spain, Ireland and Norway, see UNICEF Amicus Brief, para. 47.

52 UNICEF Amicus Brief, para. 48.

53 UNICEF Amicus Brief, para. 69.

54 Italy, Statement before the UN Security Council, UN Doc S/PV.3694, 30 August 1996, p. 6.

55 United States, Statement before the UN Security Council, UN Doc S/PV.3694, 30 August 1996, p. 15.

56 Concluding Observations of the Committee on the Rights of the Child: Uganda, 21 October 1997, CRC/C/15/Add.8O, para. 34.

57 A/RES/53/128,The Rights of the Child, 9 December 1998.

58 Preamble to the Montevideo Declaration on the Use of Children as Soldiers, 9 July 1999.

59 UN Doc. A/54/RES/263, 25 May 2000, entered into force 12 February 2002.

1 Defence Preliminary Motion, para. 3.

2 OAU DOC.Cab/Leg/24.9/49 (1990).

3 Para 8 of Justice Robertson's Dissenting Opinion.