SEPARATE OPINION OF JUSTICE GELAGA KING

1. I have had the privilege of reading the Decisions of both Justice Winter and Justice Robertson. While I agree with the reasoning of Justice Winter I would like to add a few words of my own.
2. The Defence in requesting this Court to declare that it has no jurisdiction to try the accused on Count 8 on the indictment submits that “the crime of child recruitment was not part of customary international law at the times relevant to the indictment.”[1] Nowhere in the Motion has the Defence explained what it means by the phrase “at the times relevant to the indictment.” The phrase itself is vague, imprecise and clearly lacks specificity. The obligation is on the applicant i.e. the Defence, who seeks the declaration, to detail and particularise in precise, unequivocal and unambiguous terms what exactly the Defence is requesting the Court to declare.
3. That obligation, in my judgement, must be discharged by the Defence if it is to have the relief sought, the more so as in this case where there is a serious controversy between the parties as to when the recruitment of children under the age of 15 years was criminalised. The Defence has failed to discharge that fundamental and unavoidable duty and obligation. Because of this failure and for this reason alone I am unable to grant the declaration requested. In coming to this conclusion I am not oblivious of the provision in Article 1 of the Statute of the Special Court that the Court shall “have the power to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leone law committed in the territory of Sierra Leone since 30 November 1996.”
4. Let me take this opportunity to refer to the regional treaty of the African Charter on the Rights And Welfare of the Child promulgated in 1990.[2] Sierra Leone is a State Party to that treaty. It is most instructive to refer to two Articles of that treaty which I find pre-eminently relevant in the instant application. Their provisions speak clearly for themselves and need no construction or interpretation.
5. I refer first to Article 22: Armed Conflicts:

1. States Parties to this Charter shall undertake to respect and ensure respect of international humanitarian law applicable in armed conflicts which affect the child.

2. States Parties to the present Charter shall take all necessary measures to ensure that no child shall take a direct part in hostilities and refrain in particular, from recruiting any child.

3. States Parties to the present Charter shall, in accordance with their obligations under international humanitarian law, protect the civilian population in armed conflicts and shall take all feasible measures to ensure the protection and care of children who are affected by armed conflicts. Such rules shall also apply to children in situations of internal armed conflicts, tension and strife.

6. It is perhaps, even more instructive to refer to the other Article, Article 2 which deals with the definition of a child. It states:

Article 2: Definition of a child for the purposes of this charter, a child means every human being below the age of 18 years.

7. Finally, I will end up by referring to a passage in Justice Robertson’s decision. He states, inter alia:

the baggage train, as Shakespeare’s Henry V reminds us, is not always a place of safety for children, and the Little Drummer Boy may be as much at risk as the ‘powder monkey’ on the Les Miserables barricades.[3]

With all due respect to my learned colleague, it is this type of egregious journalese the relevance of which I cannot fathom that has made it impossible for me to appreciate his reasoning.

[1] Defence Preliminary Motion, para. 3.
[2] OAU DOC.Cab/Leg/24.9/49 (1990).
[3] Para 8 of Justice Robertson’s Dissenting Opinion.