A/67/256
motivation. In many cases, children had lost their family or been separated from
their parents. Deprived of the protection of their community, they had no option but
to join armed groups for their survival. In such circumstances, the consent given by
a child could not be regarded as truly voluntary.
10. Furthermore, the Special Representative reasoned that the term “active
participation” included direct support functions linked to combat, such as acting as
scouts, messengers and porters. Children performed a myriad of functions that
supported armed groups or forces and that exposed them to potential risk. In
addition, girl child soldiers often played multiple roles: they were recruited to fight
on the front line and performed support functions, including being used for sexual
purposes and subjected to rape, forced marriage and other forms of sexual violence.
11. In its judgement, the Trial Chamber accepted that “conscription” and
“enlistment” were both forms of recruitment, in that they referred to the
incorporation of a boy or a girl under the age of 15 years into an armed group,
whether coercively or voluntarily. It endorsed the conclusions of the Special
Representative in that regard, stating that children could not give “informed”
consent because they possessed limited understanding of the short-term and longterm consequences of their choices and actions and did not control or fully
comprehend the structures and forces with which they were faced. In addition, it
indicated that the line between voluntary and forced recruitment was both legally
irrelevant and practically superficial in the context of children in armed conflict.
The Chamber also decided to apply a broad interpretation of the term “participate
actively in hostilities”, holding that it included a wide range of individuals, from
those on the front line (who participated directly) to the boys or girls who were
involved in a myriad of roles that supported the combatants. It stated that all those
activities, which covered either direct or indirect participation, had an underlying
common feature: the child concerned was, at the very least, a potential target. The
Trial Chamber also made a distinction between “direct participation” (classically
used to determine combatant status under international humanitarian law) and
“active participation” (the criterion for the use of children in hostilities), holding
that the latter was to be interpreted broadly, without conferring combatant status on
those children.
12. The Court’s experience with its first witness, a former child soldier who
recanted his initial testimony because of the presence of the defendant in the
courtroom, revealed the challenge of drawing on evidence from children while
ensuring their protection. This experience, among others, set in motion innovative
approaches to protecting the rights and best interests of children during judicial
proceedings, including alternative forms of participation. Special measures were
established by the Court, including the use of screens between the witness and the
accused, pre-statement and post-statement counselling, closed sessions and voice
and image distortion. The Court also introduced the concept of “victim status” as an
alternative, less intrusive way of ensuring access to justice for children. That status
allows child victims to choose whether to participate in hearings in person or
through legal representatives and allows for a larger number of children to
participate while reducing stress and anxiety.
13. Other lessons can be learned from the verdict. For example, the evidence
provided by child soldiers was not accepted by the judges, for various reasons. A
key concern was the use of intermediaries to identify and support the witnesses
4
12-45308
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos