CYIL vol. 12 (2021)

CYIL 12 (2021) TOWARD STRENGTHENING ACCOUNTABILITY FOR CRIMES AGAINST CHILDREN … enlisting” children under the age of 15 into national armed forces or armed groups or using them to participate actively in hostilities as a war crime that can be committed either in international or non-international conflict. 46 In general, the term “recruitment” includes both “conscription” and “enlistment.” While “enlistment” means “to enroll on the list of a military body,” “conscription” means “to enlist compulsorily.” 47 The notion “conscripting” involves a form of compulsion which can be established by demonstrating that the child joined the armed force or group due to, inter alia, a legal obligation, brute force, threat of force, or psychological pressure amounting to coercion. 48 Whether the conduct satisfies the requirements to be considered as “use to participate actively in hostilities” must be considered on a case-by-case basis. It is necessary to analyze the link between the activity for which the child is used and the combat in which the armed force or group of the perpetrator is engaged. 49 In this sense, the Monitoring and Reporting Mechanism (MRM) Field Manual defines the “use of children” as the “use of children by armed forces or armed groups in any capacity, including, but not limited to, children, boys and girls, used as fighters, cooks, porters, messengers, spies and collaborators. It does not only refer to a child who is taking or has taken a direct part in hostilities.” 50 3.3 Sexual violence In 2009, the UNSC expressed its deep concern about “the high incidence and appalling levels of brutality of rape and other forms of sexual violence committed against children, in the context of and associated with armed conflict, including the use or commissioning of rape and other forms of sexual violence in some situations as a tactic of war.” 51 Sexual violence was long considered to be just a side effect of war. Nonetheless, since 1990s international community have recognized it as a deliberate strategy of armed conflict, often linked to other forms of violations, such as killing, the recruitment and use of child soldiers and abductions. Different forms of sexual violence against children include rape, sexual torture and mutilation, enforced prostitution, sexual slavery, other sexual humiliation and harassment, and situations in which children are forced to witness sexual violence. The causes of sexual violence vary. In addition to acts of impulsive combatants, it can be also used as a strategy to create fear, terrorize populations, retaliate, undermine, or punish an opposition or change the ethnic composition of a society. 52 Although the majority of victims of reported incidents of sexual violence in armed conflict are girls, we need to bear in mind that boys also become targets. Due to their nature and stigma, fear and embarrassment they bring, the incidents of sexual violence are often underreported. The International Committee of the Red Cross described sexual violence as 46 Rome Statute, Article 8(2)(b)(xxvi), Article 8(2)(e)(vii). 47 Prosecutor v. Thomas Lubanga Dyilo , “Judgment pursuant to Article 74 of the Statute,” ICC-01/04-01/06, 14 March 2012, para. 608. 48 Prosecutor v. Thomas Lubanga Dyilo . “Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction.” ICC-01/04-01/06, 1 December 2014, para. 278. 49 Ibid. , para. 5. 50 UNICEF, Field Manual , p. 9. 51 UNSC Resolution 1882 (2009) of 4 August 2009, preambular para. 12. 52 Fatima, Protecting Children , p. 237.

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