Table of contents:
Element:
5.1. The perpetrator knew that such person or persons were under the age of fifteen years; OR
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)"."[1]
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."[2]
Additionally, Brima et al. held that:
"[...] 'while 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."[3]
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."[4]
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."[5]
"[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."[6]
Footnotes:
[1] ICC, Katanga and Chui Confirmation Decision 30 September 2008, para. 252.
[2] SCSL, Sesay et al. Trial Judgment 2 March 2009, para. 1704.
[3] SCSL, Brima et al. Trial Judgment 20 June 2007, para. 1248.
[4] SCSL, Sesay et al. Trial Judgment 2 March 2009, para. 1745.
[5] SCSL, Taylor Trial Judgment 18 May 2012, para. 1367.
[6] SCSL, Taylor Trial Judgment 18 May 2012, para. 1378.
