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In August last year, Thomas Lubanga Dyilo from the Democratic Republic of Congo became the first person to be formally charged by the International Criminal Court (ICC) with recruiting and using children under fifteen in armed conflict. Judges have until 29 January 2007 to decide whether to go ahead with a full trial or throw out the charges. As the final decision approaches, this edition of CRINMAIL looks at how the ICC protects children from the most serious crimes that face humanity. The ICC was established by the Rome Statute which came into force in 2002. It is an independent, permanent court that tries individuals accused of the most serious crimes of international concern: genocide, crimes against humanity and war crimes. The ICC also has jurisdiction over the crime of aggression. However, in a political compromise, it was agreed that this crime would not be defined or prosecuted until at least seven years after the Statute came into force. To date, over 100 countries have accepted the jurisdiction of the ICC. This means they agree to prosecute the crimes listed in the Rome Statute where these crimes are committed on their territory or where they are perpetrated by one of their nationals. The ICC is meant to complement national judicial systems; it can only initiate prosecutions when national courts are unable or unwilling to investigate such cases themselves. All crimes under the ICC's jurisdiction affect children. Genocide includes the forcible transfer of children from one group to another, with the intention of destroying a particular national, racial, ethnic or religious group. Crimes against humanity include trafficking in children. War crimes include recruiting and using children in armed conflict, attacking schools or hospitals and wilfully starving a population as a method of warfare. The Rome Statute of 17 July 1998 was the first treaty to make the recruitment of child soldiers a crime under international law. Protocol II Additional to the Geneva Convention of 1977 and the Convention on the Rights of the Child (1990) created an obligation on the part of States to refrain from recruiting child soldiers, but did not make it a crime. The Lubanga case is the first time the recruitment and use of children in armed forces, which is a war crime according to Article 8 of the Statute, has been given such a high profile in an international tribunal. Six children - who were 10 years old at the time - are cited in the indictment against Lubanga, who led the Union of Congolese Patriots militia. Their experiences are said to reflect those of hundreds of other children. Deputy Prosecutor Fatou Bensouda told the Court which heard evidence against Lubanga in November “We hope to send a message that those who use children to fight adult wars will face prosecution under the full weight of international law.” The ICC is also currently investigating situations in Uganda, Darfur and monitoring situations in the Central African Republic and Cote d’Ivoire. It issued an indictment against five leaders of the Lord’s Resistance Army of Uganda including commander Joseph Kony in October 2005 for crimes against humanity which include the abduction and sexual enslavement of children. The President of Uganda Yoweri Museveni has, however, offered a total amnesty to Kony on the condition that he renounces terrorism and accepts peace. This would protect him from prosecution at the ICC. [Sources: the ICC, BBC, The Guardian] Background note on age of conscription Further information
While Article 38 of the UN Convention on the Rights of the Child (CRC) stipulates that children under 15 must not participate directly in armed conflict, the Optional Protocol to the CRC on the involvement of children in armed conflict, which entered into force in February 2002, states that States Parties shall take all feasible measures to ensure children under 18 do not take part in hostilities, and that armed groups that are not States Parties must not recruit children under 18.