5. [Particular mental element for Element 4] The perpetrator knew or should have known that such person or persons were under the age of fifteen years.

5.1. The perpetrator knew that such person or persons were under the age of fifteen years; OR

5.2. The perpetrator should have known that such person or persons were under the age of fifteen years.

5. [Particular mental element for Element 4] The perpetrator knew or should have known that such person or persons were under the age of fifteen years.

5.1. The perpetrator knew that such person or persons were under the age of fifteen years; OR

ICC:

According to the Pre-Trial Chamber in Katanga,

"the perpetrator must satisfy the intent and knowledge requirement of article 30(1) and (2) of the Statute as well as a negligence standard set out in the phrase "should have known" with regard to the requirement that the victim be under the age of fifteen. Therefore this offence encompasses, first and foremost, cases of dolus directus of the first or second degrees."[1]

SCSL

Referring to the Appeals Chamber in Fofana and Kondewa, the Trial Chamber in Sesay et al. confirmed that:

"the mens rea requirement of the offence requires not only that the person be aware that the child is under the age of 15, but also that the child may be trained for or used in combat."[2]

"We recall that children as young as eight and nine were abducted. We are therefore satisfied that many children abducted were sufficiently young that the perpetrators knew from their physical appearance that they were under the age of 15."[3]

5.2. The perpetrator should have known that such person or persons were under the age of fifteen years.

ICC:

The Pre-Trial Chamber in Kantaga and Chui held that:

"[t]he negligence standard of "should have known" is met when the perpetrator: (i) did not know that the victim was under the age of fifteen years at the time he used the victim to participate actively in hostilities, and ii) lacked such knowledge because he did not act with due diligence in the relevant circumstances (i.e the perpetrator "should have known" and his lack of knowledge resulted from his failure to comply with his duty to act with due diligence)"."[4]

SCSL

Moreover, the Trial Chamber in Sesay et al. stated that:

"where doubt may have existed as to whether a person abducted or trained was under the age of 15, it was incumbent on the perpetrators to ascertain the person's age."[5]

Additionally Trial Chamber in Brima et al.,

" '[w]hile widespread or systematic use' of children is not a chapeau element for a finding of liability under art 4(c) of the statute [...] [that] info may be useful in assessing whether a perpetrator "knew or should have known" that persons recruited were under the age of 15."[6]

Furthermore, the Trial Chamber in Sesay et al. stated that:

"the consistent pattern of conduct of using persons under the age of 15 in hostilities was sufficient to put the perpetrators on notice that there is a substantial likelihood that the persons being used by them in hostilities were under the age of 15. The fact that the perpetrators may not in all cases have had actual knowledge of the ages of the persons used is immaterial given that the perpetrators had reason to know of their ages."[7]

According to the Trial Chamber in Taylor:

"[g]iven the prevalence of children in the RUF the Trial Chamber is satisfied that the perpetrators, including Kamara knew or should have known that these children were under the age of 15 years."[8]

"[f]urther, based on evidence of this screening process, the Trial Chamber is satisfied that the perpetrators, including TF1-362, knew or should have known that these children were under the age of 15 years."[9]