San Diego International Law Journal

Document Type



This brief addresses three questions: 1) the illegality of recruiting child soldiers into armed conflict; 2) the application of penal sanctions in international humanitarian law; and 3) the proper application of the principle of nullum crimen sine lege. Part I of our argument will establish that the recruitment of children into armed conflict is and was unquestionably a violation of international humanitarian law at the time the alleged offences took place. Part II will explain when international law permits prosecution of violations of international humanitarian law irrespective of whether penal sanctions are attached. Amici conclude that such prosecutions are permitted by law when the international humanitarian law violations are of serious gravity, when they offend the basic dignity of human beings, and when there is a sufficient international consensus that perpetrators must bear individual responsibility. We conclude that the recruitment of children into armed combat was a war crime under customary law throughout the temporal jurisdiction of the Court, not only because the alleged offences were egregious and shock the conscience of all of humankind, but particularly because there is determinative evidence that a segment of Additional Protocol II which contains the prohibition on recruitment ("Fundamental Guarantees") had attained the character of war crimes under customary law. Part III of this brief demonstrates that the doctrine of nullum crimen sine lege cannot be raised since it only prevents prosecution when an accused reasonably believes that his conduct is lawful at the time it was committed.