Morgan Grant and Iryna Levandovska
On 17 June 2025, the Verkhovna Rada of Ukraine amended the war crimes provision of the Criminal Code of Ukraine (‘CCU’) – Article 438 – to include the words “illegal transfer or deportation of a child, unjustified delay in the repatriation of a child, recruitment or use of a child for participation in an armed conflict, military (combat) operations”. Prior to the enactment of this amendment, the CCU’s war crimes provision did not mention children. Further, only two international crimes under international criminal law (‘ICL’), more generally, specifically mention children: forcibly transferring children of the group to another group as an act of genocide and the war crime of conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities.[1]
With this amendment Ukraine has taken a decisive step in explicitly criminalising war crimes against children, crimes which have become particularly prevalent throughout the full-scale invasion of Ukraine.
During the development of these amendments, Global Rights Compliance’s (‘GRC’) Mobile Child Justice Team (‘MCJT’) provided an Advisory Opinion to the Juvenile Justice Department of the Office of the Prosecutor General of Ukraine and the Working Group on amendments to legislation regarding the implementation of the Rome Statute into national legislation. This Advisory Opinion surveyed the applicable international instruments, international jurisprudence and State practice related to each proposed amendment and provided advice on the extent to which there was support under international standards and practice for the proposed amendment and on recommended wording for said amendment.
Of particular note is the inclusion of the criminalisation of ‘recruitment or use of a child for participation in an armed conflict, military (combat) operations’ under Article 438. While the wording does not specify to which age group of children the war crime applies, ‘children’ are defined in the Law of Ukraine on the protection of childhood as “a person under the age of 18”.[2] This demonstrates a noted advancement in the law in comparison to the application of this war crime under international law, which applies only to children under 15 years of age.[3]
The inclusion of this war crime within the wording of Article 438 is particularly relevant to the current conduct of the armed conflict in Ukraine. Indeed, there have been reports that Ukrainian children have been used by the Russian Federation in a manner that may qualify as ‘participation in an armed conflict, military (combat) operations’.[4] Under international law, ‘active participation in hostilities’ encompasses putting the child’s life directly at risk in combat,[5] but also includes participation in “activities linked to combat, including support functions within military operations”.[6]
For example, there are allegations that individuals allegedly associated with the Russian Federation have contacted children under the age of 18 on social media and solicited them to commit arson attacks on vehicles owned by military personnel from the Ukrainian Armed Forces.[7] Such conduct may amount to ‘sabotage’, one of the activities linked to combat that international courts have found amounts to active participation in hostilities.[8] Accordingly, if the conduct was proven and the children who committed such arson attacks were, in fact, under the age of 18, this conduct would likely amount to the war crime of using children to participate in an armed conflict, military (combat) operations under Article 438. As many of these children have purportedly been between the ages of 15 and 18, they would not have been protected by the CCU prior to the adoption of this amendment.
Traditionally, international law, including the Geneva Conventions and the Rome Statute, has limited the protection afforded by the war crime of recruitment and use of children to children under the age of 15.[9] The amendment to Article 438 of the CCU, however, is supported by a developing principle under international law which extends the protection of this war crime to children under the age of 18. This developing norm culminated with the adoption of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (‘Optional Protocol to the CRC’) (to which 173 States are party, including Ukraine and Russia). This Optional Protocol extended the application of the prohibition against the compulsory recruitment and use of children to those “who have not attained the age of 18 years”.[10] Indeed, according to the Appeals Chamber of the Special Court for Sierra Leone, the decision to raise the prohibition against child recruitment from the age of 15 to 18 through the adoption of the Optional Protocol to the CRC “proceed[ed] from the assumption that the conduct was already criminalized at the time in question”.[11] The Appeals Chamber concluded that “[t]he development process concerning the [criminalisation of the] recruitment of child soldiers, taking into account the definition of children as persons under the age of 18, culminated in the codification of the matter in the [Optional Protocol to the CRC]”.[12]
The Chamber for the Recognition of Truth and Responsibility and for the Determination of Facts and Conduct of Colombia’s Special Jurisdiction for Peace (‘JEP’), in its 2024 Case 007 concerning the recruitment and use of children in armed conflict, also held that the prohibition against the recruitment or use of children applies to children under the age of 18 and that this has become a norm of international law.[13] While the recruitment and use of children under 18 years of age has been a crime in Colombia since 1997,[14] the JEP Chamber nevertheless analysed whether the application of this prohibition to children under 18 had crystalised into a norm of international law. To support its argument in favour, the JEP pointed to the aforementioned SCSL caselaw and the wide State acceptance of the Optional Protocol to the CRC.[15] In addition, the JEP cited statistics that showed that “by 2001, 79 of the 100 States with legislation on compulsory entry into their armed forces set the minimum age at 18 years or older, and 74 of the 126 States that allowed voluntary entry, set 18 years as the minimum age for entry.”[16]
When concluding whether there was sufficient State practice and opinio iuris to determine that the prohibition amounted to a norm of international law,[17] the Court found that there was “widespread and uniform [State] practice in relation to the prohibition of recruiting or using persons under 18 years of age”.[18] With respect to opinio iuris, however, the Chamber indicated that, while it “consider[ed] that the generality of the practice referred to would suggest that opinio iuris also exists, and, therefore, this prohibition could have a customary character”, in the context of the case before it “it [did] not find it necessary to undertake the task of making that determination”.[19] Nevertheless, on the basis of the Tadić test for determining whether conduct amounts to an international crime,[20] the Chamber ruled in the affirmative that the recruitment, enlistment and use of persons under 18 years of age is a war crime.[21]
A significant and growing number of States have also criminalised the recruitment and use of children under the age of 18 as a war crime under their domestic legislation, with many following the ‘straight 18’ approach wherein they criminalise the recruitment and use of children under the age of 18 by all actors (i.e., the State’s armed forces and non-state formations).[22] In reaching this conclusion, GRC analysed the criminal legislation of the 46 Council of Europe (‘CoE’) Member States, which revealed that nine of these States criminalise the recruitment and use of children under the age of 18 as a war crime (Austria, Estonia, Finland, Lithuania, Montenegro, Norway, North Macedonia, Poland and Slovenia). For example, Estonia prohibits “[a]cceptance or recruitment of a person younger eighteen years of age in national armed forces or armed units separate from the national armed forced or engagement in acts of war”; Finland prohibits “tak[ing] or recruit[ing] children below the age of 18 years into military forces or into groups in which they are used in hostilities”; and Norway indicates that “[a]ny person is liable to punishment for a war crime who in connection with an armed conflict conscripts or recruits children under 18 years of age to armed forces or uses them actively as participants in hostilities”.[23]
However, two of these States (Austria and North Macedonia) only apply the prohibition against the recruitment and use of children to children under the age of 18 if such conduct was perpetrated by armed groups; if the recruitment or use was perpetrated by the national armed forces, such conduct is only considered a war crime if it was committed against a child under the age of 15. For example, Austria’s Criminal Code prohibits “conscript[ing] or enlist[ing] persons under the age of 15 into armed forces or conscript[ing] or enlist[ing] persons under the age of 18 into armed groups or us[ing] persons under the age of 18 to participate actively in hostilities”.[24]
A further review of 16 non-CoE States revealed that the following six States have also codified the prohibition against the use and recruitment of children under the age of 18 as a war crime: Australia, Columbia, Chad, Chile, Ethiopia and the Philippines. For example, Colombia criminalises “[a]nyone who, on the occasion of and in the course of an armed conflict, recruits minors under eighteen (18) years of age or forces them to participate directly or indirectly in hostilities or armed actions” and Chad prohibits “the conscription or enlistment of children under 18 years of age into the national armed forces or armed groups or their active participation in hostilities”.[25]
Two of these States (Australia and the Philippines), however, have an exception for the age of use and recruitment for joining their national military. For example, the Philippines criminalises “[c]onscripting, enlisting or recruiting children under the age of fifteen (15) years into the national armed forces” and “[c]onscripting, enlisting or recruiting children under the age of eighteen (18) years into an armed force or group other than the national armed forces” as well as “[u]sing children under the age of eighteen (18) years to participate actively in hostilities”.[26]
Beyond these 16 States, it is evident that other States also criminalise the recruitment or use of children under the age of 18. In particular, the ICRC’s Manual on the Domestic Implementation of International Humanitarian Law lists a further eight States – Indonesia, Libya, Malawi, Malaysia, Nicaragua, Nigeria, Qatar and Rwanda – as also having legislation criminalising the recruitment and use of children under 18.[27] Of these States, however, only Indonesia, Nicaragua and Rwanda follow the ‘straight 18’ approach, the others are silent on the criminalisation of the use and recruitment of children under the age of 18 by armed groups.
While Ukraine’s recognition that all children under 18 can be victims of the war crime of recruitment and use of children is significant, problems remain with the precise wording of the amendment which may lead to a lack of clarity in its implementation. Most notably, it fails to specify to whom the prohibition applies (i.e., national armed forces, non-state armed formations or both). As this crime is prohibited in the context of both international and non-international armed conflicts under international law,[28] it would have added further clarity on its application if the wording in Article 438 reflected the fact that this war crime applies to both States’ armed forces and non-state armed formations. There is further support for the application of this war crime to both types of actors under State practice. Indeed, the majority of the States that GRC examined in its survey of international practice apply this crime to both national armed forces and non-state armed formations.[29] Accordingly, given the applicability of this war crime to both types of perpetrators under ICL and State practice, there is ample support under international law and practice for Ukrainian prosecutors and judges to apply this war crime to both national armed forces and non-state armed formations.
By including child-specific provisions directly within the wording of Article 438, Ukraine has signalled a welcome focus on children and child-friendly justice more broadly. While the amendment underscores Ukraine’s commitment to protecting children in armed conflict, its true impact will depend on how prosecutors and judges interpret these provisions — and whether investigations and trials are conducted in a trauma-informed, victim-centred and child-friendly manner. Without careful application, the law risks remaining more symbolic than functional.
GRC’s MCJT works with Ukrainian prosecutors, investigators and judges to enhance their understanding of the practical application of ICL in domestic criminal proceedings. The MCJT also assists these entities with ensuring that children’s perspectives, concerns and experiences are integrated into any justice process involving them. The MCJT will continue to work with these entities to ensure these new war crimes are applied in a manner that promotes child-centred justice and adheres to child-friendly justice principles.
For more information about Global Rights Compliance’s work on crimes against and affecting children in Ukraine, please see the Mobile Child Justice Team website (here) or email gender.childjustice@grcompliance.org.
[1] Rome Statute, Articles 6(e), 8(2)(b)(xxvi), 8(2)(e)(vii).
[2] Law of Ukraine, ‘About the protection of childhood’ (Information of the Verkhovna Rada of Ukraine (VVR), 2001, No. 30, p. 142), Article 1. See also, Explanatory Note (amended) to the Draft Law of Ukraine No. 12170 “On Amendments to the Criminal Code of Ukraine on Establishing Liability for Illegal Transfer, Deportation, Unjustified Delay in Repatriation of a Child, Recruitment and Use of a Child for Military Purposes by a Representative of a Foreign State (30 January 2025), pp. 2-3.
[3] Rome Statute, Article 8(2)(b)(xxvi); Additional Protocol I, Article 77(2); Additional Protocol II, Article 4(3)(c).
[4] OHCHR, ‘The Impact of the Armed Conflict and Occupation on Children’s Rights in Ukraine, 24 February 2022 — 31 December 2024’ (21 March 2025), para. 69.
[5] Prosecutor v. Brima et al., SCSL-04-16-T, Trial Judgment, 20 June 2007 (‘Brima et al. Trial Judgment’), para. 236; Prosecutor v. Lubanga, ICC-01/04-01/06-2842, Trial Judgment, 14 March 2012 (‘Lubanga Trial Judgment’), paras 622, 628.
[6] Prosecutor v. Katanga, ICC-01/04-01/07, Trial Judgment, 7 March 2014, para. 104. See also, Lubanga Trial Judgment, para. 621; Prosecutor v. Lubanga, ICC-01/04-01/06 A 5, Appeal Judgment, 1 December 2014, para. 334; Brima et al. Trial Judgment, para. 737.
[7] See e.g., Ukrinform, ‘Russia recruits Ukrainian children through social media to set fire to military vehicles – Lubinets’ (23 January 2025); RFE/RL, ‘Exclusive: Russia Recruits Ukrainian Kids To Burn Military Hardware For Cash’ (16 October 2024); The Kyiv Independent, ‘Children being recruited by Russia to set fire to military cars, Ukrainian ombudsman says’ (18 June 2024).
[8] See e.g., Lubanga Trial Judgment, para. 621; Brima et al. Trial Judgment, para. 736.
[9] Additional Protocol I, Article 77(2); Additional Protocol II, Article 4(3)(c); Rome Statute, Articles 8(2)(b)(xxvi), 8(2)(e)(vii).
[10] Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (adopted 25 May 2000 by UNGA resolution A/RES/54/263), Articles 1, 2.
[11] Prosecutor v. Norman, SCSL-2004-14-AR72(E), Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), 31 May 2004 (‘Norman Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment)’), para. 36.
[12] Norman Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), para. 50 (emphasis added). See also, Special Jurisdiction for Peace (‘JEP’), Case 07: Recruitment and use of girls and boys in the armed conflict and other crimes committed against them in the context of life within the ranks, including ill-treatment, torture, homicide and sexual, reproductive and prejudice-based violence, Order No. 5 of 2024, 9 October 2024, para. 1435; Constitutional Court of Colombia, Judgment C-007 of 2018, para. 477.
[13] JEP, Case 07: Recruitment and use of girls and boys in the armed conflict and other crimes committed against them in the context of life within the ranks, including ill-treatment, torture, homicide and sexual, reproductive and prejudice-based violence, Order No. 5 of 2024, 9 October 2024, paras 1415-1439.
[14] Law 418 of Colombia, 26 December 1997, Articles 13, 14.
[15] JEP, Case 07: Recruitment and use of girls and boys in the armed conflict and other crimes committed against them in the context of life within the ranks, including ill-treatment, torture, homicide and sexual, reproductive and prejudice-based violence, Order No. 5 of 2024, 9 October 2024, para. 1417.
[16] JEP, Case 07: Recruitment and use of girls and boys in the armed conflict and other crimes committed against them in the context of life within the ranks, including ill-treatment, torture, homicide and sexual, reproductive and prejudice-based violence, Order No. 5 of 2024, 9 October 2024, para. 1428, citing JEP, Extrajudicial Executions in Casanare, Order 055, 14 July 2022, para. 584. These statistics were gathered by the Coalition to Stop the Use of Child Soldiers gathered statistics from UNICEF country offices, legislation and government policy documents and are contained in the Annex to UNICEF’s amicus curiae brief in the Norman case before the SCSL. Prosecutor v. Norman, SCSL-2003-08-PT, Amicus Curiae Brief of the United Nations Children’s Fund (UNICEF), 21 January 2004, p. 37, Annex,
[17] See e.g., Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits Judgment, ICJ Reports 1986, p. 14, para. 183.
[18] JEP, Case 07: Recruitment and use of girls and boys in the armed conflict and other crimes committed against them in the context of life within the ranks, including ill-treatment, torture, homicide and sexual, reproductive and prejudice-based violence, Order No. 5 of 2024, 9 October 2024, para. 1429.
[19] JEP, Case 07: Recruitment and use of girls and boys in the armed conflict and other crimes committed against them in the context of life within the ranks, including ill-treatment, torture, homicide and sexual, reproductive and prejudice-based violence, Order No. 5 of 2024, 9 October 2024, para. 1429.
[20] Prosecutor v. Tadić, IT-94-1, Interlocutory Appeal Decision, 2 October 1995, para. 94: “The following requirements must be met for an offence to be subject to prosecution before the International Tribunal under Article 3: (i) the violation must constitute an infringement of a rule of international humanitarian law; (ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met […]; (iii) the violation must be ‘serious’, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim […]; (iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.”
[21] JEP, Case 07: Recruitment and use of girls and boys in the armed conflict and other crimes committed against them in the context of life within the ranks, including ill-treatment, torture, homicide and sexual, reproductive and prejudice-based violence, Order No. 5 of 2024, 9 October 2024, para. 1439.
[22] ICRC, ‘The Domestic Implementation of International Humanitarian Law: A Manual’ (September 2015), Annex XVII: Model Legislative Provisions on the Recruitment or Use of Children in Armed Conflict, p. 299.
[23] Criminal Code of Estonia, Article 1023; Criminal Code of Finland, Section 5(1)(5); Penal Code of Norway, Section 103(f).
[24] Criminal Code of Austria, Section 321b(4)(2) (emphasis added).
[25] Penal Code of Colombia, Article 162; Penal Code of Chad, Article 286(cc), 288(g).
[26] Philippines Act on crimes against international humanitarian law, genocide and other crimes against humanity, Section 4(c)(24) (emphasis added).
[27] ICRC, ‘The Domestic Implementation of International Humanitarian Law: A Manual’ (September 2015), Annex XVII: Model Legislative Provisions on the Recruitment or Use of Children in Armed Conflict, p. 307-320.
[28] Additional Protocol I, Article 77(2); Additional Protocol II, Article 4(3)(c); Rome Statute, Articles 8(2)(b)(xxvi), 8(2)(e)(vii).
[29] See e.g., Criminal Code of Austria, Article 321b(4)(2): “Anyone who, in connection with an armed conflict: 2. conscripts or enlists persons under the age of 15 into armed forces or conscripts or enlists persons under the age of 18 into armed groups or uses persons under the age of 18 to participate actively in hostilities”; Criminal Code of Estonia, Article 1023: “Acceptance or recruitment of a person younger eighteen years of age in national armed forces or armed units separate from the national armed forced or engagement in acts of war is punishable by one to five years’ imprisonment”; Criminal Code of Finland, Section 5(1)(5): “takes or recruits children below the age of 18 years into military forces or into groups in which they are used in hostilities”; Criminal Code of Lithuania, Article 105: “(1) A person who […] conscripts or recruits children under the age of 18 years into the armed forces or uses them in a military operation. (2) A person who conscripts or recruits children under the age of 18 years into military service in the military groups not belonging to the armed forces of the State or uses them in a military operation”; Criminal Code of North Macedonia, Article 404: “A person who […] enrolling and recruiting minors younger than 15 into the armed forces of the country or recruiting persons under the age of 18 in armed forces that are not armed forces of the country and using them by active participation in conflict activities”; Chile Law on Crimes Against Humanity and Genocide and War Crimes and Offenses, Article 26(1): “Anyone who: 1. Recruits or enlists one or more persons under the age of eighteen in the national armed forces or armed groups or has used them to actively participate in hostilities”; Criminal Code of Australia, Section 268.88: A person commits an offence if “the perpetrator uses one or more persons to participate actively in hostilities as members of the national armed forces” or “the perpetrator conscripts one or more persons into an armed force or group other than the national armed forces”; Philippines Act on crimes against international humanitarian law, genocide and other crimes against humanity, Section 4(c)(24): “(i) Conscripting, enlisting or recruiting children under the age of fifteen (15) years into the national armed forces; (ii) Conscripting, enlisting or recruiting children under the age of eighteen (18) years into an armed force or group other than the national armed forces; and (iii) Using children under the age of eighteen (18) years to participate actively in hostilities”.