3. 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.

3.1. The perpetrator conscripted one or more persons into the national armed forces; OR

3.2. The perpetrator enlisted one or more persons into the national armed forces; OR

3.3. The perpetrator used one or more persons to participate actively in hostilities.

3. 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.

In Fofana and Kondewa, the Appeals Chamber held that:

"[...] the crime of enlisting chldren under the age of 15 years into armed forces or groups and of using them to participate actively in hostilities may be committed irrespective of the number of children enlisted by the accused person."[1]

Additionally, the Trial Chamber in Taylor held that there must be:

"[...] a nexus between the conscription, enlistment and/or use and the armed conflict, that each of the victims was not taking an active part in the hostilities at the time of conscription, enlistment and/or use and that the perpetrators knew this fact."[2]

3.1. The perpetrator conscripted one or more persons into the national armed forces; OR

3.2. The perpetrator enlisted one or more persons into the national armed forces; OR

According to the Trial Chamber in Fofana and Kondewa:

"[...] it is clear that voluntary enlistment is but one type of enlistment. The Chamber therefore fins that the term "enlistment" could encompass both voluntary enlistment and force enlistment into armed forces or groups, forced enlistment being the aggravated form of the crime. In the Chamber's opinion however, the distinction between the 2 categories is somewhat contrived. Attributing voluntary enlistment in the armed forces to a child under the age of 15 years, particularly in a conflict setting where human rights abuses are rife, is, in the Chamber's view, of questionable merit"."[3]

Moreover, the Taylor Trial Chamber held that:

"[...] '[e]nlistment' entails accepting and enrolling individuals when they volunteer to join an armed force or group. Enlistment need not be a formal process, and may include "any conduct accepting the child as part of the [armed group]. Such conduct would include making him participate in combat operations". Conscription and enlistment are both types of recruitment, and while conscription involves an element of express compulsion or coercion, this element is absent in enlistment."[4]

"[t]he crime of enlisting or conscripting "is an offence of a continuing character - referred to by some courts as a continuous crime and by others as a permanent crime". The crime of conscripting or enlisting children under the age of 15 continues to be committed as long as a child remains in the armed force or group and consequently ceases to be committed when the child leaves the armed group or reaches the age of 15 years."[5]

The Appeals Chamber in Fofana and Kondewa noted that:

"[i]n the context of this case, in which the armed group is not a conventional military organisation, "enlistment" cannot narrowly be defined as a formal process. The Appeals Chamber regards "enlistment" in the broad sense as including any conduct accepting the child as a part of the militia. Such conduct would include making him participate in military operations."[6]

"a nexus must be established between the act of the Accused and the child joining the armed force or group in order to constitute enlistment. 'Whether such a nexus exists is a question of fact which must be determined on a case-by-case basis'."[7]

Furthermore, according to the Trial Chamber in Lubanga,

"[i]t follows that the status of a child under 15 who has been enlisted or conscripted is independent of any later period when he or she may have been "used" to participate actively in hostilities, particularly given the variety of tasks that he or she may subsequently be required to undertake. Although it may often be the case that the purpose behind conscription and enlistment is to use children in hostilities, this is not a requirement of the Rome Statute. The Chamber therefore rejects the defence contention that "the act of enlistment consists in the integration of a person as a soldier, within the context of an armed conflict, for the purposes of participating actively in hostilities on behalf of the group."[8]

Lastly, the Trial Chamber in Lubanga confirmed that:

"[...] the consent of a child to his or her recruitment does not provide an accused with a valid defence."[9]

The Appeals Chamber in Fofana and Kondewa illustrated the scope of enlistment:

"[...] on this occasion the initiates had taken the first step in becoming fighters. Consequently, the Trial Chamber found that when Kondewa was initiating the boys, he was also "performing an act analogous to enlisting them for active military service."[10]

With regard to the term "national", the Pre-Trial Chamber in Lubanga defined it as follows:

"[...] the Chamber recalls that the context of international armed conflict is not restricted solely to the use of force between two states, but that it extends to certain situations in which parties to the conflict may be organised armed forces or grps.[...] Firstly, the ordinary meaning of the adjective 'national' does not necessarily lead to an interpretation of the term as meaning gover'tal armed forces. [...]Secondly, interpreting the term 'national' to mean 'governmental' can only undermine the object and purpose of the Statute of the Court, which is none other than to ensure that 'the most serious crimes of concern to the international community as a whole' must no longer go unpunished."[11]

"In fact, on the basis of basic humanitarian considerations and common sense, it would be absurd that Thomas Lubanga Dyilo could incur criminal responsibility for the crime of enlisting or conscripting children under the age of 15 years only in the context fo an internal armed conflict solely because the FPLC, as an armed force, could not be described as a 'national armed force' within the meaning of article 8(2)(b)(xxvi) of the Statute. [...] thus, the chamber consdiers that, under art 8(2)(b)(xxvi) of the Statute, the term 'the national armed forces' is not limited to the armed forces of a State."[12]

3.3. The perpetrator used one or more persons to participate actively in hostilities.

In the Katanga Trial Judgement, the Trial Chamber held that:

"The Chamber further notes the particular nature of this crime, whose purpose is to protect children under the age of 15 years who may be used in hostilities in various ways.

It considers, contrary to the Defence submission, that as regards the crime proscribed by article 8(2)(e)(vii), use of the expression "actively participate in hostilities" rather than "direct participation", which appears in certain international humanitarian law instruments, is not insignificant. The definition must prohibit several forms of participation in hostilities with a view to protecting children from the risks faced during armed conflict.

Accordingly, in the Chamber’s view, and as argued by the Legal Representative of child-soldier victims, whereas "active participation" in hostilities does refer to direct participation in hostilities, viz. combat, it also encompasses active participation in activities linked to combat, including support functions within military operations. However, a child is not actively participating in hostilities if the activity which he or she is performing is "clearly unrelated to hostilities."

Consonant with the position adopted by Trial Chamber I in Lubanga, the Chamber considers that all activities which constitute active participation in hostilities, whether they entail direct or indirect participation, possess, by virtue of their connection to the hostilities, the essential common feature that the child is, at the very least, a potential target during the hostilities. Accordingly, "[t]he decisive factor [...] in deciding if an indirect role is to be treated as active" participation in hostilities is whether the support provided by the child to the combatants exposed him or her to real danger as a ‘potential target’". In this regard, the Chamber considers that the use of children in support functions on the front line, including as porters, is encompassed by the concept of activities connected to the hostilities. It further considers that the guarding of military objectives or the performance of the duties of a bodyguard or member of an escort also constitute such activities, especially when they have a direct impact on the level of logistical resources and on the organisation of operations required by the other party to the conflict whose aim is to attack such military objectives."[29]

Following the Akayesu Trial Chamber,

"[...] inasmuch as Common Article 3 is for the protection of 'persons taking no active part in the hostilities' (Common Article 3(1)), and Article 4 of Additional Protocol II is for the protection of, 'all persons who do not take a direct part or who have ceased to take part in hostilities'. These phrases are so similar that, for the Chamber's purposes, they may be treated as synonymous. Whether the victims referred to in the Indictment are indeed persons not taking an active part in the hostilities is a factual question, which has been considered in the Factual Findings on the General Allegations (paragraphs 5-11 of the Indictment)."[13]

The Trial Chamber in Lubanga confirmed that:

"[t]he prohibition against using children under the age of 15 to participate actively in hostilities is not dependent on the individuals concerned having been earlier conscripted or enlisted into the relevant armed force or group. [...]Therefore, consistently with Article 22(2) of the Statute, a child can be "used" for the purposes of the Statute without evidence being provided as regards his or her earlier "conscription" or "enlistment" into the relevant armed force or group."[14]

According to the Taylor Trial Chamber:

"[...] 'using' children to participate actively in the hostilities encompasses putting their lives directly at risk in combat, but may also include participation in activities linked to such carrying loads for the fighting faction, finding and/or acquiring food, ammunition or equipment, acting as decoys, carrying messages, making trails or finding routes, manning checkpoints or acting as human shields. Whether a child is actively participating in hostilities in such situations will be assessed on a case-by-case basis."[15]

In determining what activities constituted "active participation", the Trial Chamber in Sesay et al. focused on direct support and was:

"[...] not satisfied that such conduct constitutes active participation in hostilities, as these activities were not related to the hostilities and did not directly support the military operations of the armed groups."[16]

However, the Trial Chamber in Lubanga held that:

"[t]he extent of the potential danger faced by a child soldier will often be unrelated to the precise nature of the role he or she is given.Those who participate actively in hostilities include a wide range of individuals, from those on the front line (who participate directly) through to the boys or girls who are involved in a myriad of roles that support the combatants. All of these activities, which cover either direct or indirect participation, have an underlying common feature: the child concerned is, at the very least, a potential target. The decisive factor, therefore, in deciding if an "indirect" role is to be treated as active participation in hostilities is whether the support provided by the child to the combatants exposed him or her to real danger as a potential target. In the judgment of the Chamber these combined factors - the child's support and this level of consequential risk - mean that although absent from the immediate scene of the hostilities, the individual was nonetheless actively involved in them. Given the different types of roles that may be performed by children used by armed groups, the Chamber's determination of whether a particular activity constitutes "active participation" can only be made on a case-by-case basis."[17]

"In this respect, the Chamber considers that this article does not apply if the activity in question is clearly unrelated to hostilities. Accordingly, this article does not apply to food deliveries to an airbase or the use of domestic staff in married officers' quarters."[18]

Furthermore, the Trial Chamber stated that:

"[...] an overly expansive definition of active participation in hostilities would be inappropriate as its consequence would be that children associated with armed groups lose their protected status as persons hors de combat under the law of armed conflict. Nonetheless, the Chamber finds that the nature and purpose of the crimes committed against civilians warrants their characterisation as active participation in hostilities. The Chamber considers this interpretation necessary to ensure that children are protected from any engagement in violent functions of the armed group that directly support its conflict against the adversary and in which the child combatant would be a legitimate military target for the opposing armed group or groups."[19]

In Rutaganda, the Trial Chamber explained:

"[...] individuals of all ranks belonging to the armed forces under the military command of either of the belligerent parties, or to individuals who were legitimately mandated and expected, as public officials or agents or persons otherwise holding public authority or de facto representing the Government, to support or fulfil the war efforts. The class of civilians thus broadly defined, it will be a matter of evidence on a case-by-case basis to determine whether a victim has the status of civilian."[20]