## Facts

- Sam Hinga Norman, a leader of the Civil Defence Forces in Sierra Leone, was indicted for multiple crimes, including child recruitment.
- The indictment included an Article 4(c) charge for conscripting or enlisting children under 15 into armed forces or groups, or using them to participate actively in hostilities.
- The Defence filed a preliminary motion challenging jurisdiction over the child recruitment count, arguing the prohibition was not customary international law at the relevant time and that prosecution would violate *nullum crimen sine lege*.
- The Trial Chamber referred the jurisdictional motion to the Appeals Chamber under Rule 72(E).
- The Appeals Chamber received written submissions, including participation by an intervening co-accused’s counsel and submissions from authorized amici curiae, and held an oral hearing before issuing its decision.

## Issues

1. Whether, before 30 November 1996, customary international law prohibited conscripting or enlisting children under 15, or using them to participate actively in hostilities, as reflected in Article 4(c).
2. Whether that prohibition entailed individual criminal responsibility before 30 November 1996, such that prosecution under Article 4(c) would not be retroactive under *nullum crimen sine lege*.

## Decision

- The Appeals Chamber dismissed the Defence preliminary motion for lack of jurisdiction.
- The Chamber held that, prior to 30 November 1996, customary international law prohibited conscription, enlistment, and active use in hostilities of children under 15.
- The Chamber held that the prohibition carried individual criminal responsibility at that time and therefore did not violate *nullum crimen sine lege*.
- The Article 4(c) child recruitment charge remained within the court’s jurisdiction and could proceed.

## Legal Principles

- Customary international law is determined by examining relevant treaty provisions, state practice, and opinio juris; treaty acceptance and repeated affirmation across instruments may evidence crystallization of a customary norm.
- A prohibition may be customary and criminal in character even if instruments articulating the rule were framed as state obligations rather than explicit individual-penal provisions.
- Serious violations of fundamental guarantees under international humanitarian law can entail individual criminal liability under customary international law.
- Explicit treaty codification of a crime (including later instruments) may confirm and implement an already-existing customary norm rather than create it.
- National legislation criminalizing the conduct can support findings of state practice and opinio juris on the existence of a customary rule and its criminal nature.

## Conclusion

The Appeals Chamber affirmed jurisdiction over the child recruitment charge, concluding that recruiting or actively using children under 15 in hostilities was prohibited by customary international law and attracted individual criminal responsibility before the court’s temporal jurisdiction began, making prosecution under Article 4(c) consistent with *nullum crimen sine lege*.


Prosecutor v. Norman, Case No. SCSL-2004-14-AR72(E) (Special Court for Sierra Leone Appeals Chamber May 31, 2004)