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War and Children: The Prosecution of Child Soldiers



The military recruitment of child soldiers is not uncommon in armed conflict. This article will discuss the actions taken by the international community to prevent and punish the recruitment of children, the accountability of child soldiers, and propose alternative paths to their prosecution. Particular focus is paid to Working Paper No.3, the third paper issued by the Office of the Special Representative of the Secretary General for Children and Armed Conflict.


To start with, training children for their service once they turn eighteen occurs in more than forty-three states. According to the list published by the UN Security Council for 2017, Afghanistan, Myanmar, Somalia, South Sudan, Sudan, Syria, and Yemen all recruit children and underaged young people to join their armed forces. The general tendency with states practising child recruitment is that they are larger and wealthier than average, and focus a lot of their resources on their military. For instance, Australia, China, France, Germany, Saudi Arabia, and the USA allow enlistment from the age of seventeen. Brazil, Canada, and the UK are among the small handful of countries that set the bar even lower, at age 16.[1]


Recruitment occurs with non-state armed groups as well.[2],[3] An additional 200,000 children are recruited into paramilitary, guerrilla groups, and civil militias in more than 87 countries.[4] Paramilitary groups in Colombia have recruited children as young as eight years old, while eleven-year-olds have been drafted into the Northern Alliance in Afghanistan.[5] Children forced to engage in armed conflict also commit various human rights abuses, such as wilful killing, torture, and inhumane treatment. They are orphaned, raped, maimed, and manipulated. Their childhood, along with any educational prospects, is destroyed, while they themselves are subjected to a life of violence.


So what has International law achieved in this respect? The global community has been deeply troubled by the failure of International law to provide clear guidelines on how to deal with this issue. Some guidance is provided by Article 8(2) Rome Statute of 1998,[6] providing that ‘conscripting or enlisting children under the age of fifteen and using them to participate in hostilities’ is a war crime. Since the Statute came into force, such indictments have been issued by the ICC in the Democratic Republic of the Congo (DRC) and Uganda.[7]


However, one will surely agree that to effectively tackle the problem, states need to first ensure that violations against children are being investigated and prevented at a national level. A few issues stand in the way of accomplishing this. Firstly, states affected by armed conflict may not have the capacity to pursue such a course of action right away – their judicial system may be impaired, while their judges - biased or corrupted. Secondly, the majority of children who were witnesses reach adulthood by the time the trial takes place, as happened with the International Tribunal for the Former Republic of Yugoslavia[8] and the Lubanga case.[9] Thirdly, international criminal prosecutors are often reluctant to rely on the testimony of children, because it may be influenced by the interviewers, or it may affect the child’s mental health when recalling facts on numerous occasions.[10]


Are children accountable for their actions? What is the minimum age a for a child to become so? Some, albeit vague, guidance is given by Article 26 ICC which states that persons under the age of eighteen will not be prosecuted. The reason for this is the differing standard of responsibility held by each country, varying from seven[11] to sixteen.[12] Article 77(2) Protocol I of the Geneva Convention is thought to provide an answer. It states that ‘the parties to a conflict should take all feasible measures to avoid recruiting children under fifteen into their armed forces.’ A possible interpretation of it is that if a child under fifteen is considered too young to participate, they cannot be held accountable for their actions. The Optional Protocol on the Involvement of Children in Armed Conflict (OPAC) of 2002, however, states otherwise. It holds that the age of active participation in hostilities is eighteen, which is viewed as the more acceptable option of the two.[13] Moreover, under the Beijing rules,[14] the age of criminal liability for juveniles ‘should not be set too low, and should take into consideration emotional, mental, and intellectual maturity.’[15] Finally, in its General Comment No.10 (2007), the CRC Committee required all states to set a minimal age for criminal responsibility, concluding that the absolute minimal age should be twelve.


The next issue concerns children prosecution. While the majority of children are recruited by force, others have joined the armed forces voluntarily. The reasons for that may be poverty, ideological attraction, lack of opportunities, or a need to protect the community. The Paris Principles and Guidelines on Children associated with Armed Forces and Armed Groups (2007) state that ‘children having committed crimes under international law should be considered as victims and not as perpetrators’,[16] due to them being physically and mentally vulnerable. Meanwhile, the Rome Statute provides that ‘the Court shall establish principles relating to reparations […] including restitution, compensation, and rehabilitation.’ Under the Statute, reparations are not limited to individual monetary compensation, but can also include collective forms of reparation and symbolic measures that could promote reconciliation within divided communities.[17] An example is Sierra Leone, where reparations were collective, and in the form of national memorial services, proper burials, or statements of apology.


With respect to the above, prosecution and detention do not seem the most appropriate measures for the majority of cases. Child soldiers ought to be screened and, where they are found unlikely to engage in similar activities or recruitment, be reintegrated back into their communities. For these reasons, it is the commanders that are the primary wrong-doers, and ought to be held accountable.


To conclude, the international community continues to struggle in setting an age standard to be recognised by every state. Nevertheless, some achievements are undeniable. The global recognition of the ‘straight 18’ standard, for instance, has grown from eighty-three to one hundred twenty-six countries. At the same time, the Office of the Special Representative of the Secretary General for Children and Armed Conflict is as ever committed to protecting children from grave violations, fighting for their fair treatment, and raising awareness across the globe.


Joanna Ivanova

International Law Feature Writer

1st May, 2018


 

[3]To clarify, non-state armed groups are the opposition of the state, although in certain instances they receive support from it

[4] Human Rights Watch, ‘Child Soldiers: Global Survey Shows New Trends’, https://www.hrw.org/news/2001/06/11/child-soldiers-global-survey-shows-new-trends, accessed 28 March 2018

[5] Nienke Grossman, ‘Rehabilitation or Revenge: Prosecuting Child Soldiers for Human Rights Violations’, (2007) 38 Georgetown Journal of International Law [323]

[6] Article 8(2)(e)(vii) Rome Statute 1998

[7] Office of the Special Representative of the Secretary-General for Children and Armed Conflict, ‘Working paper No. 3: Children and Justice During and in the

Aftermath of Armed Conflict’ [9]

[8] Security Council resolution 827 (1993) [International Criminal Tribunal for the former Yugoslavia (ICTY)]

[9] The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06

[10] Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime, ECOSOC Resolution 2005/20, Annex 13

[11] Article 94 United Arab Emirates Children’s Code of 1996

[12] Don Cipriani, ‘Children’s Rights and the Minimum Age of Criminal Responsibility: A Global Perspective’ (Ashgate, 2009)

[13] Optional Protocol to the Convention on the Rights of the Child on Involvement of Children in Armed Conflict (New York, 25 May 2000), <http://treaties.un.org> accessed 30 March 2018

[14] The United Nations Standard Minimum Rules for the Administration of Juvenile Justice adopted by the General Assembly resolution 40/33 of 29 November 1985, (the Beijing rules)

[15] Ibid.

[16] United Nations Children’s Fund, Principles and Guidelines on Children Associated with Armed Forces or Armed Groups (Paris Principles) 2007 [9]

[17] Article 3 Hague Convention 1907; Article 91 Additional Protocol 1 to the Geneva Conventions 1949



Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are listed in the bibliography above.

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