Summary
On the sixth day of the proceedings of the Appeals Chamber, the Registry continued to do an excellent job with court management issues.  Counsel generally appeared better prepared than on prior days, and they presented their arguments clearly and forcefully.  The judges continued to appear more comfortable in their roles.  However, questions remained about their preparation and organization, especially given the substantial and unexplained delay in beginning the proceedings.  Additionally, while the judges refrained from interrupting counsel as often as they had on prior days, some remained impatient with counsel and continued to exhibit a tendency to lecture or to make arguments from the bench.

Proceedings
The proceedings, which were scheduled to begin at 10.00, were delayed by over half of an hour.  Courtroom personnel and counsel appeared ready at 10.00, but the judges did not enter the courtroom and commence the proceedings until after 10.30.

Before the proceedings began, Sam Hinga Norman was escorted by Special Court security officers into the crowded courtroom and seated at a table at the rear of the section for counsel.

* Prosecutor v Norman; Prosecutor v Fofana: Motion on Lack of Jurisdiction: Child Recruitment
Submission by Tim Owen QC for Mr Norman

Mr Owen began by referring to the section on child recruitment within the United Nations Secretary General’s report on the establishment of the Special Court for Sierra Leone from October of 2000.  He quoted the section of the report that reads:  “But while the prohibition on child recruitment has by now acquired a customary international law status, it is far less clear whether it is customarily recognized as a war crime entailing the individual criminal responsibility of the accused”.

Judge Robertson asked if that was the end of the matter for Mr Owen.

Mr Owen responded “yes”, and then continued, stating that the issue here is whether the recruitment of children is a war crime.

Judge Winter asked whether it was agreed that one first has to establish customary international law as of the appropriate time.

Mr Owen said that he accepted that there was a prohibition on child recruitment under customary international law, but it was not a war crime.

Judge Robertson asked whether this was a distinction without a difference.

Mr Owen first noted the requirements of the Tadic decision, specifically that the prosecution of the crime be possible.  He second noted the UN Secretary General’s report, and referred to the provisions showing what he said was the original intention that the crime be abduction leading to conscription.

Judge Robertson asked, “Doesn’t it still?”

Mr Owen said “no”.

Judge Robertson asked what is in the International Criminal Court Statute.

Mr Owen said that it is the same as Article 4(c) of the Special Court Statute.

Judge Robertson replied by querying whether this provision would make illegal school cadet corps.

Mr Owen resumed setting forth his arguments and pointed to the rule against retrospectivity.

Judge Robertson asked if there was any dispute about this.

Mr Owen said that that isn’t the Prosecution’s position.

Judge Robertson said that that’s clearly wrong.

Mr Owen then read the charge.

Judge Robertson responded that the charge was restrictive.

Judge Winter returned to the text of Article 4(c), and asked for guidance as to why Mr Owen was asserting that it would not have been a violation of international humanitarian law at the time.  She said that as far as she could see, the Geneva Conventions would protect children at the time.

Mr Owen said he accepted that the established view in 1996 was that this was a violation, but he stated that it was not one entailing criminal responsibility.

Judge Winter asked whether the argument is, no document spoke of punishment before the ICC, therefore there was no crime before then.

Mr Owen said “yes”, and further stated that the substantial jurisprudence is somewhat abstruse but the fundamental point is that criminal offences should be clear.  The aim is that no defendant can ever claim ignorance.

Judge Robertson asked whether it wasn’t clear that one shouldn’t do it.

Mr Owen said “yes”, but it was not a crime.  He also noted that Michiel Pestman would be covering the ICC Statute.

Judge Winter inquired whether the defence argument is that the ICC created new law, but did not pronounce customary law.

Mr Owen said that the defence argument is focusing only on child soldier issues.

Judge Winter asked whether it was strange that the drafters of the ICC Statute created only one “new” article.

Mr Owen said that it was not necessarily strange, and noted that the article was clearly the result of a long campaign by NGOs and the UN.  He also noted that prospectively it is not a problem.

Judge Robertson noted that the campaign about this issue began in Angola with the killing of heads of villages by children, and that the use of children in that way would seem to be accepted by all as a crime against humanity.  Judge Robertson then queried what “participate actively” means.

Mr Owen said that the offence is a strict liability offence.

Judge Winter also noted the use of the word “or”.

Mr Owen said that it opens a huge range of offences.

Judge Robertson asked if Mr Owen accepted it to be against criminal law to use children as sex slaves.

Mr Owen said “yes”.

Judge Robertson then asked when that crystallized.

Mr Owen said that he could not give a proper answer, and would give the Court one later.

Mr Owen then referred to a book by Judge Cassese and its discussion of the Tadic case, and noted a discussion on page 50 that states that in order for an act to become a war crime it is necessary for it to be criminalized.  He further stated that there is a need to avoid the simplistic situation of any violation of the laws of war being a war crime.  Not all violations of international humanitarian law are war crimes.

Judge Robertson noted that there is a problem with courts proceeding hand-in-hand with prosecutions for violations of international humanitarian law and prosecutions for crimes against humanity.  The problem is the attempt to merge the two concepts.

Judge Robertson next discussed the issue of cadet corps.  He noted that in the case of international law or criminal courts, there is no parliament, with perhaps the exception of the United Nations.  He also noted in international law the need to look into whether an act is a crime, and queried what is the definition of an offence that has crystallized.  He further noted that abducting children and putting them in situations of violence is contrary to all domestic law.

Mr Owen responded by stating that that is not what’s done here.

Judge Robertson then continued, quoting Article 4(c) of the Special Court Statute, and querying, if a democratic government were under siege, wouldn’t it put a gun in the hand of anyone who could fight?

Judge Winter inquired whether a prohibition on enlisting children under 15 falls under the general protection of children.

Mr Owen said that it certainly would be a breach of the child’s rights.

Mr Owen then urged that a strict view should be taken based on the principle of legality, and inquired what a lawyer would have advised a field commander in 1996.  He further stated that if the UN Secretary General was in doubt, then that answers it.

Judge Robertson asked if the Court is bound by Article 4(c).

Mr Owen said “yes”, but then was interrupted.

Judge Robertson said that however much we might dislike it, our parliament has rushed in and defined the crime in broad terms.  He then stated that he thought problems related to the prohibition on child recruitment were noted over the years by the United States and the United Kingdom.

Judge Winter responded by emphasizing that we are talking about persons under the age of 15.

Mr Owen said that he did not think that that takes us further.

Judge Winter then queried whether, if someone said children were cheaper and more malleable soldiers than adults, how would that affect the argument?

Judge Ayoola interrupted and asked whether it is relevant that after the report of the Secretary General, the UN Security Council proceeded to regard this as a violation of international humanitarian law.  Until the contrary is established, aren’t Articles 2, 3 and 4 a reflection of existing crimes?

Mr Owen said that since the 1960s, it is the view that parliament should enact crimes, and that they don’t spring up from common law.  He noted, however, a rape case that was brought to the European Court of Human Rights.

Judge Robertson inquired whether that can’t be of use to the Prosecution here because this is obviously abhorrent and because by 1996 this is reasonable foreseeable to be criminal.

Mr Owen said that the European Court of Human Rights case is hugely criticized, and there are huge differences because of a pre-existing offence in that case.

Judge Robertson asked whether that isn’t the same here.

Mr Owen said that the practice in this instance has been deprecated but not criminalized.  He also said that there is not a single country in the world that has criminalized it.

Judge Winter asked for evidence of this.

Judge Ayoola asked what that tells us.  He further said that many international crimes are not in national law.

Judge Winter also asked about positive law examples in which only conscription above “x” years of age is allowed.

Mr Owen said that he would not accept that to be relevant.

Judge Ayoola asked whether that would prohibit recruitment below 15.

Mr Owen said “maybe”, but there is no criminality.  He said further that there is a strict test.  We have moved away from substantive justice and the strict legality approach now reigns.

Judge Ayoola asked what factors Mr Owen is looking at to determine criminalization.

Mr Owen cited the Tadic case, and noted the question in the context of whether war crimes committed in international armed conflicts only could be prosecuted.  He said that the important factor was the individual criminal responsibility of the accused and the analysis of the prohibition.

Judge Robertson noted that one used to show that something was so wicked that the international community must set up courts to prosecute it.  This can be said with genocide and torture, but with child recruitment?  He then asked, is the only way of prohibiting, criminalization?

Mr Owen said “no”.

Mr Owen next referred to a 1994 study by Goodwin Gill and a 1998 study by Bennett.  Referring to the first, on pages 154-155, he said that it was the assumption of the authors that child recruitment was not a war crime, and that it was doubtful whether the provisions of the Convention on the Rights of the Child protected child soldiers.

Judge Robertson said, maybe it was not a crime at the time, but then it became one through the ICC.

Mr Owen said that for his purposes, that is all right.

He then referred to the Bennett study, pages 22-23, and he said that it noted that existing law was not good enough, and that child recruitment should be criminalized.

Judge Robertson asked about marital rape, which became a crime by the actions of judges not parliament.

Mr Owen said that he acknowledges that case.

Judge Robertson then asked what is the existing crime.

Mr Owen said that there is not one, and that he has not understood how the Prosecution put it.

Submission by Michiel Pestman for Mr Fofana

Mr Pestman began by pointing to Article 8 of the ICC Statute, particularly section 2(b)(iii).  He said that this also is a new crime.  Mr Pestman then noted the revision of the Special Court Statute.

Judge Robertson inquired about the construction of a crime that makes it criminal to recruit cadets.

Mr Pestman noted the President of the Security Council said that this was a crime in 2000, but the question is whether it was a crime in 1996.

Judge Robertson noted that the terms of the ICC Statute were adopted at the Rome Conference, and so it could be said that as of July 1998, child recruitment is a war crime.

Mr Pestman admitted, that yes, that is the position of the Prosecutor, but it is not a strong argument.

Mr Pestman stated that treaties are part of State practice, but there was no statement in this case that States intended to codify this crime.

Judge Robertson then said, but didn’t this come from the International Law Commission draft?  On this the Prosecution may be able to help us.

Mr Pestman said that sometimes a treaty may, nevertheless, be augmented by subsequent practice accompanied by opinio juris to make customary law.

Judge Winter asked if subsequent practice is conviction or legislation.

With regard to practice, Mr Pestman noted that Libya and Iran allow conscription of children under 15 years.

Judge Robertson said that one must say there is an almost universal State practice that abhors conscription of persons under 15 years.  Judge Robertson then continued, asking if there is any distinction regarding recognition as a war crime and a crime against humanity.  He also asked if Mr Pestman says the rape case was rightly decided.

Mr Pestman said that the rape case stretched the law to the limit.

Judge Robertson said that the court created new law.  The court tore law up and created new law, didn’t it?

Judge Robertson then continued, stating that you can’t have certainty in criminal law if there is a thin ice theory.

Mr Pestman said that one can safely conclude that abduction of children is a crime.

Judge Robertson asked, isn’t conscription of children a form of abduction?  Isn’t conscription just a polite word for abduction?

Mr Pestman said that it could then have been prosecuted as abduction.

Judge King then queried whether it was being stated that crimes that are abhorrent cannot be punished.

Submission by Chris Staker for the Prosecution
Mr Staker began by stating that the crime noted in Article 4(c) was a crime at all times material to the indictment.  He also said that he intends to show that it is a crime under international law at such times.  He further stated that he does not dispute the principle of legality, but there are some distinctions.  There is less certainty with international law than with national law.

Judge Robertson interrupted at this point, asking if the standards shouldn’t be the same.

Mr Staker said that they are not.

Judge Robertson then inquired about the process of crystallization of law.

Mr Staker said that it usually is not the case that you fix a date when something became a crime, but rather that you determine if something has become a crime by a certain date.

With regard to that issue, Mr Staker said that it was conceded that this crime may only have crystallized shortly before 1996.

Judge Robertson inquired whether it only was possible to hold onto July of 1998 as a fixed date.

Mr Staker said “no”.

Judge Robertson also noted that it was not until 2002 that the ICC Statute was ratified by a sufficient number of States that it could come into force.

Mr Staker said that even at the time of the signing of the ICC Statute, child recruitment already was an international crime.

Mr Staker continued, stating that it has been accepted by the Defence that child recruitment is contrary to international law.  The question is whether it has been criminalized.

Mr Staker next referred to page 758 of Archibold International, and pointed to Article 8(2)(e)(vii) of the ICC Statute.  He further stated that international humanitarian law is about combatants and non-combatants.

Judge Robertson asked if children were defined as non-combatants for all time.

Mr Staker noted that they can become combatants.

Judge Robertson then asked about a situation where children were combatants on one side of a conflict and so needed to be used on the other side.

Mr Staker acknowledged this hypothetical situation and said that once a 14 year old picks up a gun, he can be attacked.  However, the point of the law is to protect children from this situation.

Judge Robertson next asked whether there was a defence of necessity to this charge.

Mr Staker said that that does not go to the jurisdictional question.  However, in principle the answer would be “no”.

Judge Ayoola asked whether, when assembling the elements of an offence, you don’t include the defence.

Mr Staker said “yes”.

Mr Staker next said that the cadet corps question need not be asked here.  In time of peace, the elements of the crime would not be satisfied.  In time of war, the question would be whether they were part of the armed forces.

Judge Robertson said that Mr Staker would appear to read Article 4(c) conjunctively.  Judge Robertson then asked, what if there was a long war with youth training?

Mr Staker said that yes, there is a reason for that.  If there is an armed conflict, then these persons become targets, and that is why the law aims to protect them.

Mr Staker then moved on to his point that international law doesn’t have the same clarity as national law.

Judge Robertson asked if one still has to be satisfied that something has crystallized as a crime.

Mr Staker said that the question is whether a person in the position of an accused could know what he was doing was in violation of the law.

Judge Robertson said that a lawyer in 1996 would have said that you would not likely go to jail.

Mr Staker said that he disagreed.

Judge Robertson then pointed to the Goodwin Gill study.

Mr Staker said that a competent lawyer would have said that what you are doing is contrary to international law.  That is accepted by the Defence.

Judge Robertson asked where this answer would have been found.

Mr Staker said that he could not point to one text, but this act was contrary to international law.  It was prohibited by Article 4 of Additional Protocol II, and the 1994 Statute of the International Criminal Tribunal for Rwanda conferred jurisdiction over certain crimes under Additional Protocol II.

Judge King proposed a situation in which one group is chopping limbs, and some 14 year olds decide to join another group that is fighting this practice.

Mr Staker said that the Prosecution’s submission is that if commanders knew that 14 year olds were fighting, the situation is the same.

Judge King queried whether there is an inherent right to self-defence, no matter what the age.

Mr Staker said the question is whether a child can become a combatant.  It is not lawful to commit a war crime to combat a war crime.

Judge King then asked about practical circumstances and the defence of necessity.

Mr Staker said that there is a distinction between self-defence and using a child in combat.

Judge Robertson returned the discussion to the language of Article 4(c) and asked again if it should be read conjunctively.

Mr Staker began by stating that enlistment itself is a war crime.  He also said that if combatants are not in uniform they are illegal combatants.

Judge Robertson interrupted and asked whether these niceties were applicable here.  He further inquired with respect to this situation whether we aren’t talking about circumstances in which the law of the jungle applied.

Judge Robertson then returned to the ICTR Statute, and said that there is no proof there.

Mr Staker admitted there was not one authority that could have been relied upon to state child recruitment was a crime, but there was an accumulation of authorities.

Judge Robertson asked, when was there a statute prior to 1996 that made it a crime?  Was it the Geneva Conventions of 1949?

Mr Staker said “no”.

Judge Robertson subsequently asked, Additional Protocol II?

In response, Mr Staker referred to Article 4 of Additional Protocol II regarding fundamental guarantees, noted the protection to all persons who do not take direct part in hostilities, and again noted that the ICTR Statute conferred jurisdiction over crimes under Additional Protocol II.

Judge Robertson asked how many States had ratified Additional Protocol II by 1996.

Mr Staker responded that whether child recruitment is criminal does not depend on that.  In 1994, the ICTR Statute was adopted by the UN Security Council and crimes under Additional Protocol II were made part of the Statute.  Acknowledging that child recruitment was not specifically listed, Mr Staker noted that the Statute specifically noted that the power to prosecute was not limited to the serious violations listed.  The question then is what other ones does it include.  To answer this question, Mr Staker cited the Kordic case and its discussion of counts 3, 4, 5 and 6 referring to Additional Protocol II.

Judge Robertson queried whether this was a general injunction on States, not individuals.

Mr Staker stated that all of the violations could be seen that way.

Judge Robertson also scolded Mr Staker, stating that he must learn to answer questions from the bench if he can.

Mr Staker said that it is conceded that there is no one statute that one could have looked to.

Judge Robertson then queried if the Prosecution might get some support from national laws making it a crime to serve alcohol to children, and backing up other laws protecting children.  Judge Robertson also asked if it was the Prosecution’s case that the Accused committed a crime in conscripting children as a State authority into the armed forces.

Mr Staker said that the charge is that they were conscripted into a private army.

Mr Staker then directed his submission to the Kupreskic case, and its reference to the Martens Clause.  He stated that the case notes that, to the extent prohibitions are not in treaties, populations remain under protection of international law.

Mr Staker also referred to the UN General Assembly resolution of December of 1993 that notes the situation of children in armed conflict and calls for a report.  That report was published on 26 August 1996.

Judge Robertson queried whether the resolution works against the Prosecution because it is saying that something must be done.

Mr Staker said that the “something to be done” might be the prosecution of crimes.  He said that the report notes that it is difficult, if not impossible, to achieve reconciliation without justice, and urges the achievement of prosecutions.  Mr Staker acknowledged that the question of whether we have gone to the next level is crucial.  He further stated that these documents say that “yes, we have”.

Judge Robertson next asked if the Prosecution accepts the European Court of Human Rights test.

Mr Staker said that the Prosecution accepts the international test.

Judge Robertson queried where that is found.

Mr Staker said that it is found in the jurisprudence of the ICTY.

Judge Robertson then concluded by stating that the Court reserves judgement, and may wish to hear further argument and hear amicus submissions.

Judge Robertson also said that the Court expresses gratitude for the assistance provided, and noted that, in all cases, the Court reserves judgement.  He further noted that there are three weeks for final submissions, and that decisions are not expected before December, possibly January.

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** This report is taken from the notes of an international law consultant for NPWJ, Mr John F. Stompor, who attended the proceedings before the Appeals Chamber of the Special Court for Sierra Leone.