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

P.9. Evidence that the perpetrator knew that such person or persons were under the age of fifteen.

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

P.10. Evidence that the perpetrator failed to make inquiries about a person or persons’ age even though the person or persons could, by their appearance, be younger than fifteen.

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

P.9. Evidence that the perpetrator knew that such person or persons were under the age of fifteen.

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

P.10. Evidence that the perpetrator failed to make inquiries about a person or persons’ age even though the person or persons could, by their appearance, be younger than fifteen.

A. Legal source/authority and evidence:

Michael Cottier, “Article 8” in Otto Triffterer, ed, Commentary on the Rome Statute of the International Criminal Court (1999) para.232:

“With respect to the level of knowledge the accused must have with regard to the age of the child, it is submitted that it is sufficient that the accused was willfully blind to the fact that the child was under fifteen years. The mens rea requirement would for instance be met if the accused does not provide for safeguards and inquire the age of the child even thought the child’s age appears close to the protected minimum age.”

The Impact of Armed Conflict on Children, United Nations General Assembly, U.N. Doc. A/51/306.Add.1, 6 September 1996, p.6:

“In many countries, birth registration is inadequate or non-existent and children do not know how old they are. Recruiters can only guess at ages based on physical development and may enter the age of recruits as 18 to give the appearance of compliance with national laws.”