CRIMINALLY RESPONSIBLE? CHILD SOLDIERS COMMITTING WAR CRIMES

Quick trivia question (assuming you’re not all quizzed out from ILC’s epic quiz night!!). What do the following have in common: Alexander the Great’s Macedonian army, Carl von Clausewitz’ Prussian forces, the US Civil War, World War 2, the SECOND Sudanese Civil War (because one was not enough apparently) and ISIS?

CHILD SOLDIERS. The use of children in warfare is not merely an anachronism of history; it continues to exist today. For example, you may have seen the Gaziantep wedding bombing that killed at least 50 people earlier in August. This act was allegedly perpetrated by a teenager between 12 and 14 years of age. And who could forget the photo posted to Twitter of a 7 year old holding the decapitated head of a Syrian soldier back in 2014? The horrific truth of the matter is that this is only a fraction of the problem. Presently, there may be anywhere from 250,000 to 300,000 child soldiers active worldwide. This is a tremendous number, and consequently is a huge concern for the global community. While a survey of the prevalence and incidence of child soldiering would make an interesting topic in itself, this article is concerned with a more specific question: should a child soldier be held accountable for a war crime they commit?

Before we explore this, however, we must understand the concept of child soldiering in international law.

The ‘hard’ sources of international law (treaties and customary international law) provide a somewhat patchwork arrangement for the protection of children from warfare. Importantly, there is an absolute prohibition on recruiting persons under 15 years of age into State forces, encapsulated by the Convention on the Rights of the Child and the Geneva Conventions. Such recruitment amounts to a war crime under the Rome Statute of the International Criminal Court.

For the 165 States that have ratified the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, the standard is higher, with a minimum age for recruitment established at 18 years old. However, this comes with the caveat that States may recruit voluntary participants under 18 to their national forces. Unfortunately, this seems to have hampered efforts to persuade non-State armed groups to release children they have already recruited, as of course the children’s release would weaken their strategic position relative to State forces.

The most rigorous standard set in ‘hard’ international law is actually the one found in the African Charter on the Rights and Welfare of the Child. This requires States to take all necessary measures to ensure that no child under 18 takes a direct part in hostilities, implying that States may also be responsible for ensuring armed groups within its borders do not recruit child soldiers.

Expanding upon this binding foundation are the various ‘soft’ international instruments, mostly resulting from symposia of key stakeholders convened to develop strategies to prevent the recruitment of children in warfare. Importantly, they are far more comprehensive than the ‘hard’ instruments: any form of child soldiering becomes unlawful; whether voluntary or compulsory, directly participating or incidentally involved, or whether for a State force or non-State force.

From the context of the aforementioned laws, it is clear that child soldiers are viewed primarily as victims; the object rather than subject of the law.

On the other hand, we must not forget that, as a matter of domestic law, children can still be held criminally responsible for their actions.

What is the significance of all this information that’s been thrown at you, you may ask? Well, this is where we arrive back at the conundrum raised at the beginning of the article.

Should a child be held accountable for a war crime they commit?

Following from what we have established, the question may be approached in two ways:

  1. The ‘child soldier as victim’ endorsed in international materials relating to the recruitment of children in warfare; or
  2. The ‘child soldier as perpetrator’ endorsed in the concept of criminal responsibility.

If considering the child soldier to be a victim, it would seem incredibly harsh to hold them responsible for a war crime. To use an analogy, it would be like giving a child a pin, putting them into a room full of balloons, and then placing full responsibility on them when one pops. Except, in the case of child soldiers, you have recruited them for the purpose of popping balloons, taught them how the pin works, made them practise popping, and before entering the room even directed them to pop a balloon. Departing from this analogy, the (rhetorical) question becomes thus: if a child soldier is being manipulated or forced into committing certain acts, how could we possibly hold them culpable for those acts? It would be against the principles of justice and morality to do so.

Conversely, if we consider the child soldier as perpetrator, it would almost seem wrong not to hold the child accountable. Let us consider an example. A 13-year-old child from Uganda burgles a house and takes off with some food and electronics. Under the Ugandan penal code, this may result in detention. Now imagine the same child recruited into the Lord’s Resistance Army and going on to bomb a wedding, murder a civilian family, or rape a villager. Should they avoid punishment?

Put differently, how can we punish a child for an ordinary common crime on the one hand, and not hold the same child even accountable for an extraordinary international crime on the other?

The argument may be made that these are fundamentally different situations. In committing the war crime, the child is not exercising free will as they are a victim manipulated into action. In committing the common crime, the child is exercising their free will. Yet this would seem to over-simplify the matter. Not all war crimes will be committed under duress, just as not all common crimes are committed free from duress. Further, an argument to this effect would seem to suggest that ‘just following orders’ is a legitimate defence to the commission of a war crime, which we know it is not.

Conversely, we may submit that children are not just following orders, but following orders without the capacity to know what they are doing is wrong, therefore diminishing their responsibility. Yet surely this is not the case. If a child can be presumed to know that stealing is wrong, would they not also be presumed to know that murder is wrong?

Whatever the answers to these questions, and I do not profess to have them, it seems clear that there is an inherent inconsistency in prohibiting the recruitment of child soldiers on the one hand, and attaching criminal responsibility to children on the other.

Just by way of conclusion, thus far it seems that the practical approach to this inconsistency has been to prosecute the recruiters and leave the child soldiers alone. But is this approach a good one? Or does it simply dance around the complex issue of child soldiering?

 

Samuel Lindsay is a first year Juris Doctor student and Ordinary Committee Member of the UWA International Law Club who seizes every opportunity to correct grammatical error’s.

PS. If the issue of child soldiers interests you, I would recommend reading the following book:

Mark A Drumbl, Reimagining Child Soldiers in International Law and Policy (Oxford University Press, 2012)

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