Table of contents:
Element:
A. Evidentiary comment:
The test, "The perpetrator knew, or should have known", is a deliberate deviation from the standard set in article 30 of the Rome Statute as to knowledge in relation to elements describing a circumstance. One commentator notes that "the deviation was considered to be appropriate, given the need to protect children and to place some responsibility on persons who transfer persons in such a context to verify that they are not transferring children". (See Charles Garraway in Roy S. Lee, The ICC, Elements of Crime and the Rules of Procedure and Evidence (2001) at page 55).
Human Rights and Equal Opportunities Commission (Australia), Bringing them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, House of Representatives Official Hansard, 38th Parliament, 26 May 1997, p. 4002; online: www.humanrights.gov.au/social_justice/bth_report/report/index.html,
In the case of aboriginal children in Australia at the beginning of the 20th century, the effort was directed at children under the age of 8.
P.12. Evidence of identifying persons by use of identity cards.
A. Legal source/authority and evidence:
Prosecutor v. Clément Kayishema and Obed Ruzidana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, para. 287:
"According to this witness what they had to do was to use identity cards to separate the Tutsis from the Hutus. The Tutsis were arrested and thereafter executed, at times, on the spot."
B. Evidentiary comment:
In the above case, it was not specifically children who were identified; nevertheless, the age would also be apparent from checking identification.
