Published: 19 May 2021 Authors: Stefan Talmon and Philippe Allen
On 29 April 2020, the Higher Regional Court of Düsseldorf sentenced German national Carla-Josephine S. to five years and three months in prison for, inter alia, the war crime of enlisting a child under the age of 15 years in an armed group participating in a non-international armed conflict. The 33-year-old mother had left Germany in October 2015 and travelled with her three minor children against the will of the father to Syria. There, she joined the “Islamic State” (“IS”) terrorist organisation and married an IS fighter from Somalia who was subsequently killed. In May 2016, Carla-Josephine S. consented to the military training of her six-year-old son, Hamza, in an “Ashbal al-Khalifah” (Lion cubs of the Caliphate) training camp even though she was concerned that upon completion of the training at the age of nine he could be available to the IS as a fighter. Ashbal training camps were set up in every town and village under IS control. Children stayed there for six months completely isolated from the outside world and were groomed to become IS soldiers, not to join the fighting immediately, but to become the next generation of jihadist fighters. After three days in the training camp, Hamza was brought back to his mother because he was still too young. In the summer of 2016, at the age of seven, the boy was once again taken to a training camp, where he received physical training, was instructed in the use of weapons, and introduced to sentry duties. During this time, Hamza shot with a gun. After a few weeks, he again returned to the defendant. In the summer of 2017, Hamza was sent to a training camp for the third time, from which he returned after two to three weeks. Hamza was killed in December 2018 at the age of eight in a missile strike.
In April 2019, the German Federal Foreign Office facilitated the return of the defendant and her children to Germany. Upon her arrival, she was arrested, and the children were placed in the care of social services. On 9 October 2019, the Federal Prosecutor General filed an indictment with the State Security Senate of the Higher Regional Court of Düsseldorf accusing Carla-Josephine S. of, inter alia, a war crime against persons. The indictment was based on section 8(1)(5) of the German Code of Crimes against International Law (“CCAIL”), which reads as follows:
“Whoever in connection with an international armed conflict or with an armed conflict not of an international character […] conscripts children under the age of fifteen years into the armed forces, or enlists them in the armed forces or in armed groups, or uses them to participate actively in hostilities […] shall be punished […] with imprisonment for not less than three years.”
This provision is to give effect to Article 8(2)(b)(xxvi) and (e)(vii) of the Rome Statute of the International Criminal Court.
In its judgment, the Court first established that the fighting that took place in Syria during the period of the offence between the Syrian State army and opposition groups, especially IS, constituted an “armed conflict not of an international character”, stating:
“In international criminal law, an armed conflict is understood to mean the use of armed force between States (international armed conflict) or protracted armed confrontations between the government and organized armed groups or between such groups within the territory of a State (non-international armed conflict). The existence of a non-international armed conflict is to be determined negatively: in contrast to mere internal disturbances, tensions, riots as well as sporadic acts of violence or other acts of a similar nature, it is necessary that the armed conflicts exceed a certain level of intensity and that the non-governmental groups involved possess a minimum level of organisational structure. A non-international armed conflict may exist notwithstanding the intervention of one State or several States on the side of the effective government, as is the case with the Russian participation in Syria. The clashes that took place in Syria during the period of the offence thus fulfilled the aforementioned requirements.”
The Court then examined whether in the context of the non-international armed conflict in Syria the IS terrorist organisation constituted an “armed group” within the meaning of section 8(1)(5) CCAIL. Elaborating on the requirements of an “armed group”, the Court stated:
“By using the criterion of the armed group in addition to that of the (State) armed forces, the legislature wanted to extend the scope of section 8(1)(5) CCAIL – in line with the provisions in Article 8(2)(b)(xxvi) and (e)(vii ) – to non-international armed conflict that does not necessarily require the participation of armed forces. By modelling the CCAIL on the provisions of the Rome Statute it follows that the criterion of the armed group within the meaning of section 8(1)(5) CCAIL requires a minimum level of organisational structure. According to Article 8(2)(f) of the ICC Statute the corresponding provision of Article 8(2)(e)(vii) of the ICC Statute only applies if ‘organised’ armed groups – possibly alongside State armed forces – are involved in an armed conflict that takes place in the territory of a State, but not in cases of mere internal disturbances, tensions, or riots. At the time of the offence, IS had an organisational structure that went well beyond the minimum required. The organisation had several thousand armed fighters who were subordinate to the ‘Minister of War’ and were organised into local combat units, each with a commander. This created a structure that made it possible to exercise military control under responsible leadership over a territory, to ensure the training of new recruits, and to carry out sustained and coordinated combat operations.”
The Court concluded that during the civil war in Syria, at least during the period of the offence, IS constituted an armed group.
The Court then turned to the question of whether by agreeing to send her son to the Ashbal training camp, the defendant had “enlisted” him in an armed IS group. It stated:
“Enlistment within the meaning of the second alternative of section 8(1)(5) CCAIL is to be understood as any – even de facto – inclusion in an armed unit. In the present case, the Ashbal training unit, into which the defendant’s son was admitted with her consent, represented an armed unit within the armed group of IS. This is shown by the fact that the children and teenager were instructed in the use of firearms there. The handover of the boy [to a person who brought him to the camp] manifested the defendant’s consent to Hamza’s training in the system of the so-called Ashbal which, in itself, fulfilled the requirement of enlistment. This consent was only refreshed in the later handovers […]. Admission for training purposes also fulfilled the requirement of enlistment in an armed group because enlistment does not require admission to an active armed combat unit, does not require active participation of the enlisted person in hostilities and also must not be aimed at such participation. This already follows from a systematic interpretation of section 8(1)(5) CCAIL which establishes the conscription, enlistment and use of child soldiers as separate offences. For the question of whether the admission of a child for training purposes fulfils the requirements of section 8(1)(5) CCAIL, it is therefore also irrelevant whether an active deployment seems realistic in the near future. Children are to be protected not only from the dangers of operations at the front but also, and especially, from being exposed at a young age to a culture in which violence and the killing of people are normal or approved of and required. In addition, according to the object and purpose of the provision children are to be protected from various other dangers that could lurk in military training camps, such as corporal punishment, assaults or bombardments. The Ashbal training camps also qualified as armed units of the IS because they were equipped for firearms training. In addition, the training camps were official IS institutions. They were not operated by private providers, but were subject to the administration and supervision of the organisation. The IS systematically and specifically recruited children and teenagers in order to have them repeatedly trained in these camps and to be able to use them as fighters of the IS troops at a later date. Children trained in these camps were used in executions and later actively used, for example for running errands, other auxiliary services in the field and, at an older age, also as fighters for the organisation.”
The Court also found that enlistment in terms of section 8(1)(5) CCAIL did not require a certain length of time spent at the Ashbal training camp. It stated:
“A certain length of stay in the armed group is just as irrelevant for the requirement of enlistment as whether the enlistment leads to completion of the deployment time or the training intervals foreseen by the armed group.”
The Court held that as a seven-year-old child Hamza clearly fell within the protective purview of section 8(1)(5) CCAIL. In particular, there was no indication that the protection was limited in any way to persons who are to be protected under international humanitarian law within the meaning of section 8(6) CCAIL. The Court also observed that section 8(1)(5) CCAIL did not require that the perpetrator was in any way linked to IS. The protective purpose of international criminal law applicable to armed conflict was always affected if the specifically dangerous situation of armed conflict enabled or facilitated the offense, even if the perpetrator was a civilian. However, that was not relevant as the Court found Carla-Josephine S. to have been an IS member. The Court thus concluded that the defendant had enlisted her son in an armed group within the meaning of section 8(1)(5) CCAIL.
Finally, the Court found that the enlistment of the child also occurred “in connection with” the non-international armed conflict in Syria, stating:
“The requirement is to be understood in functional terms. A connection exists if the existence of the armed conflict was essential for the perpetrator’s ability to commit the offense, for his decision to commit the offense, for the manner of commission, or for the purpose of the offense; the offense must not only be committed “on the occasion” of the armed conflict. On the other hand, the offense need not be committed during ongoing fighting or have a particular spatial proximity to it. In the present case, the armed conflict in which the IS participated formed the decisive background for the defendant’s decision to have her son instructed in the use of firearms in the IS training camp. Hamza’s enlistment in the armed organisation of IS took place against the background of the ongoing civil war and served to strengthen the fighting power of IS as a party to the conflict. That armed conflict, in which IS was able to establish its ‘State’, was the precondition for training camps like the IS one in question being able to be set up in the first place.”
The decision of the Higher Regional Court of Düsseldorf is noteworthy for its broad interpretation of the term “enlistment”. Neither the CCAIL nor the Rome Statue or its Elements of Crimes define the concept of enlistment. According to their wording, both conscription and enlistment refer to the “recruitment” of children. International criminal courts and tribunals have distinguished between coercive or forcible recruitment (conscription) and voluntary recruitment (enlistment). The term “enlist” is commonly defined as “to enrol on the ‘list’ of a military body”. Trial Chamber II of the Special Court for Sierra Leone stated that enlistment means “accepting and enrolling individuals when they volunteer to join an armed force or group.” The Appeals Chamber of that Court regarded enlistment as “including any conduct accepting the child” as a part of an armed group. This shows that the prohibition of enlistment is directed at the commanders and members of armed forces or groups who accept or enrol children and not at the children’s parents consenting to such acceptance or enrolment. On the basis of this understanding of the term, the defendant could only have been liable for aiding and abetting the enlistment of her son by consenting to the IS accepting him into the Ashbal training camp.
The Higher Regional Court of Düsseldorf, however, defined enlistment broadly as “any – even de facto – inclusion in an armed unit.” For the Court, the handover of the boy to a person who brought him to the IS training camp thus fulfilled the requirement of enlistment. This is reminiscent of Judge Winter’s broad interpretation of the term enlistment as any act that “substantially furthers the process of a child’s enrolment and acceptance into an armed force or group.” The principle objective underlying the prohibition of enlistment and conscription is to protect children under the age of 15 from the risks that are associated with armed conflict and to secure their physical and psychological well-being. In the case of religious, ideologically or politically blinded parents, children may also need protection from their own parents who are supposed to protect them. While the term “conscription” requires action on the part of the State or the armed group, the term “enlistment” is used both in the passive and active voice. Children may be enlisted by an armed group, but they may also enlist in such a group. In the same way that a child may enlist itself, it may also be enlisted by its parents. There thus seems to be no textual obstacle to a broad reading of section 8(1)(5) CCAIL and, consequently, of Article 8(2)(e)(vii) of the Rome Statute.
Category: International criminal law