6 Children’s Legal Rights Journal [Vol. 38: 1 2018]
1 of the Convention on the Rights of the Child (CRC) 17 excludes as children persons under age
eighteen who have attained the age of majority under an applicable State law, “child” victim, as
the term is used here, includes all persons under eighteen who have either been victims in the past
or are currently victims of SEA by international peacekeeper perpetrators participating in UN
The approach taken here-in terms of including as child victims of SEA by international
peacekeepers all such victims under the age of eighteen is also linked to the issue of consent. The
approach is consistent with recognition of the fact that, whether adolescent child or younger child,
neither can be deemed to give voluntary consent in the coercive context of an armed conflict or
fragile post-conflict situation to an adult with such high status who wields tremendous power in
innumerable respects. Excluding adolescents as ‘children’ in the discussion by some regarding
SEA of children by international peacekeepers, on the view here, promulgates a false narrative that
adolescents can consent to sexual contact with an adult regardless of the power differential in
various respects, and notwithstanding the surrounding highly coercive circumstances in which the
SEA occurred. On the analysis here then; the false proposition being advanced by those who would
exclude adolescents as “child” victims of SEA by international peacekeepers is that where such
alleged voluntary consent is given by the adolescent, SEA has not occurred. Consider, in this
regard, that lack of consent is not considered a material element of the crime of sexual violence
(such as rape) under the Rome Statute Elements of the Crime. Given an appreciation for the
coercive circumstances ( i.e. armed conflict or unstable post-conflict context) in which such sex
crimes most often occur and the need to serve the interests of justice, the ICC Trial Chamber in
the Bemba Gombo case, for instance, noted:
. . .[the] victim’s lack of consent is not a legal element of the crime of rape under the Statute.
The preparatory works of the Statute demonstrate that the drafters chose not to require that
the Prosecution prove the non-consent of the victim beyond reasonable doubt, on the basis
that such a requirement would, in most cases, undermine efforts to bring perpetrators to
Note that in the International Criminal Court Judgment in Bemba Gombo; it was
recognized that the material element insofar as the circumstances or conditions required to consider
that the sexual crime of rape has occurred, could be satisfied also where the perpetrator “took
advantage of [already existing] coercive circumstances,” or where the victim was “a person
incapable of giving genuine consent” (which incapacity could be related to age),19or where there
Children’s Rights Language: An Example Concerning the Topic of Sexual Exploitation of Adolescents, 5 INT’L J. OF
THE HUMAN. 53, 53–59 (2007).
17 CRC, supra note 5.
18 Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, Trial Chamber III Judgment, ¶ 105 (Mar. 21, 2016).
19 The Rome Statute Elements of the Crime at footnote 16 and 64 sets out that there can be an age-related incapacity
to give consent for sexual violence ( i.e. rape) though neither the Rome Statute nor the Rome Statute Elements of the
Crime set out a specific age or age range in that regard. See Rome Statute of the International Criminal Court, Elements
of Crimes (2011), https://www.icc-cpi.int/NR/rdonlyres/336923D8-A6AD-40EC-
AD7B45BF9DE73D56/0/ElementsOfCrimesEng.pdf [hereinafter Rome Statute].