The phenomenon of the Child Soldiers between International Law, UN Humanitarian Action and State responsibility. In memory of Samuel Opiyo
Author: Elianna Baldi
We worked in Central African Republic (CAR) from 2011 to 2019. In 2016 we met a Ugandan boy, Samuel Opiyo, who escaped from the Lord’s Resistance Army (LRA) saving a Central African abducted girl. He was a prisoner in the military hospital in Bangui. We followed all attempts to bring him back to Uganda.
We shared the joy of his mother, who lost him when he was 12 and he was kidnapped by the LRA. We shared her hope to have him back. We share her pain of losing him again. He was 24 years old, and he lived half of his life as an invisible child victim of violence, a young boy forced to fight while dreaming to go back to school. He died condemned as a perpetrator, invisible.
We kept the memory of this young man in our heart wondering how the machine set up for the reintegration of ex-child soldiers could work, if it failed to save a simple life.
This paper is an attempt to answer this question and put Samuel’s case in the context of International Law and all the existent mechanisms created in order to counter the LRA and to face the challenge of protecting children affected by armed conflict.
SAMUEL OPIYO: Incident Report INR-6429
We have found an official trace of Samuel on the website of Crisis Tracker, a geospatial database and reporting project that tracks armed group activity and conflict-related incidents in the remote border region encompassing northeastern Democratic Republic of Congo and the eastern Central African Republic. There is no name, but the description and the date match our information. He is defined as a Ugandan male, belonging to the LRA.
We report here below the information provided by the political affairs officer of the Bangui Field Office of MINUSCA who first met Samuel, and the Ugandan Catholic priest who took care of him and his situation.
“Born, 24 years ago, at Lalur Lakamlim village, in Paimol division, Pader district. Abducted by the LRA in 2004, at the age of 12, when he was coming back from school. He stayed with Kony in Uganda, South Sudan, D R Congo (Garamba) and, since 2009, in Central African Republic and Sudan (Kafia Kingi). According to what he told he was used as carrier by the rebels, because they didn’t trust him and they never gave him a weapon.
*He escaped in December 2015 from Kafia Kingi, in the company of a 15-year old Central African girl whom he saved her life. They walked for four months and in April 2016 they reached the girl´s village in Bakouma (Mbomou prefecture) in CAR. Her parents welcomed Samuel and offered him to stay with them as an adopted son.
*While in Bakouma, the Uganda People’s Defence Force (UPDF) tried, in vain, to keep him and repatriate him to Uganda, as they always do with LRA Ugandan defectors . The Prefet from Mbomou wanted to get some political credit out of his case and took him to Bangui, where he handed him over to the Gendarmerie. He was kept in custody and brought to trial. When he arrived in Bangui his general state of health was good, apart from nightmares.
*The Human Rights Division (HRD) of the UN Mission in CAR (MINUSCA) tried, in vain, to have him released and hand him over to the UPDF . The US embassy in CAR also tried in vain. MINUSCA pleaded with the Government that he was abducted and therefore a victim. MINUSCA also told the Government that he had the right to have a lawyer and an interpreter for his trial. The Government of CAR provided him with an English-speaking lawyer, but he refused to do his work as he asked to be paid first.
*In May 2016, Samuel went on hunger strike. Samuel was deeply traumatized. He mistrusted everybody and did not accept to touch him or feed him except a Ugandan working in Bangui priest and the HRD’s political affair officer. A psychologist who visited him said that he could only be given treatment if taken out of a custodial environment.
*After a lot of lobbying at a high level (UNOCA), the CAR Minister of Security, Jean-Serge Bokassa, signed on 10 June a decree for his expulsion from the country. However, the Minister of Justice, Flavien Mbata, has been blocking its implementation. After some further lobbying by the UN, on 1 July Minister Bokassa pledged to speedily solve his case in cooperation with the Minister of Justice.
*The priest has offered to give him an accommodation with the Sisters of Charity (of Mother Teresa of Calcutta) in Bangui, pending his airlift to Obo. On 8 July, the Minister of Justice pledged to transfer him to the sister´s house next Monday 11 July. However, on 8 July Samuel was abruptly transferred from the military hospital to Camp de Roux high-security military prison.
*From the military prison, they succeeded in getting Samuel to the place of the sisters, where he spent almost two months. There he could recover health and strength. The follow up with the Minister of Justice for his release was not possible. The situation was somehow neglected. Samuel was later taken from the sister’s house to Ngaragba prison. At a certain moment, it has not been possible to have more contact with him nor to have news of him.
They were never informed, when he died, how he died and where he was buried.”
The Crux of the Problem
Samuel was one of the victims of Joseph Koni’s army. He shared that he was still dreaming of going back home and studying. He eventually found the courage to escape and probably it was the fondness for that girl that gave him strength. He was also a forced member of the LRA and in the eyes of the authorities he was certainly labeled as an enemy and a perpetrator. He decided to give up on that life.
As all the former child soldiers, they are in the middle of a dilemma… Do we have to consider them as victims or as perpetrators? The way we answer this question leads to totally different actions. We will try to outline what exists in the international and regional system regarding child soldiers.
Samuel was 24 years old, so he was not a child any longer. His biological age made it easier to tip the scales to the plate of the perpetrator. His mental state instead was a mirror of the violence of which he had been a victim. He was convinced that people would poison him or try to kill him. So he was refusing food and drink. He didn’t wash and didn’t take care of himself at all. He only accepted the care and the things offered by the Ugandan priest, who was speaking his own maternal language. He probably died as a result of refusing to drink and eat.
A question is raised regarding the legitimacy of the Central African judicial and penitential system, given the way his situation was handled and the absence of information regarding his death. Respect for the rights of persons under arrest or detention is also questioned. Unfortunately we do not have the space here to address this issue that can be the object of future research.
International Law, UN System and AU Answers on Children in Military
The most comprehensive and internationally endorsed definition of child soldiers can be found in the 2007 Paris Principles and refers to
any person below 18 years of age who is or who has been recruited or used by an armed force or armed group in any capacity, including but not limited to children, boys, and girls used as fighters, cooks, porters, messengers, spies or for sexual purposes. It does not only refer to a child who is taking or has taken a direct part in hostilities. (par 2.1).
Attention to the phenomenon of child soldiers is due to Graça Machel who, following a recommendation by the Committee on the Rights of the Child, was appointed by the UN Secretary General to conduct a study on the impact of conflict on children, including their participation in wars as child soldiers. Thanks to the publication of her report in 1996, the General Assembly recommended that the Secretary-General appoint a Special Representative on children and armed conflict.
Since, significant improvements have been made in the adoption of laws, policies, and guidelines, predominantly at the international and continental levels, to promote and focus on the need for child protection in situations of armed conflict.
Notably, there has been a swell of Security Council resolutions dealing with various aspects of children in armed conflicts which have led to, among others, the creation of the UN Security Council Working Group (UNSCWG) on Children in Armed Conflict, the Office of the Special Representative to the Secretary-General on Children in Armed Conflict (SRSG-CAAC), and the annual publication of the Secretary-General’s (SG’s) ‘name and shame’ reports on perpetrators of grave violations against children (Save the Children International, 2019).
A landmark achievement in International Law has been the decision of ICC on the case of the Prosecutor vs Thomas Lubanga Dyilo (ICC, 10/07/2012), the first trial before the ICC highlighting the problem of child soldiers and the need to protect children in conflict.
The list of international legal instruments is very long and shows how the phenomenon of child soldiers is complex and intersects different areas of law. It includes treaties on human rights, humanitarian law, refugee law, regional human rights treaties, as well as international standards and norms, in particular The Paris Commitment to Protect Children from Unlawful Recruitment or Use by Armed Forces or Armed Groups (2007) and The Paris Principles and Guidelines on Children associated with Armed Forces or Armed Groups (2007).
There are numerous international actors that aim to effect the international legal frameworks. A non-exhaustive list would include key bodies such as the UN Security Council, the SRSG-CAAC, UNICEF, the UN Department of Peacekeeping Operations (DPKO), the Department of Political Affairs (DPA), OHCHR, UNHCR, OCHA, the Inter-Agency Standing Committee (IASC) – as the primary mechanism for inter-agency cooperation in humanitarian assistance – and UNDP (particularly in post conflict situations) (Save the Children International, 2019, p.31).
The Office of the Special Representative of the SG for Children and Armed Conflict (CAAC) works in synergy with Member States, UN Entities, Continental and Regional organizations, and with NGOs, who are key partners in the implementation of the CAAC mandate in countries on her agenda.
A new impulse to the phenomenon was given after the World Humanitarian Forum (2016) with the Humanitarian-Development-Peace Nexus (Inter-Agency Standing Committee and UN Working Group on Transitions, October 2016).
In September 2018, an alliance of Member States, UN agencies, the World Bank, civil society organizations and academia launched The Global Coalition for Reintegration. The aim is to innovate new ideas to sustainably address support for child reintegration programs. It is co-chaired by the Office of the Special Representative of the Secretary-General for Children and Armed Conflict, and UNICEF. The child protection is a sub-focus area within the humanitarian cluster of the protection, led by the UNHCR.
In her February – April 2022 Report to the Human Rights Council, the Special Representative of SG for CAAC stressed that The African Union remained a key partner and her Office continued to engage closely with African Union counterparts.
UNICEF and the UN Office of the Special Advisor for Children Affected by Armed Conflict (CAAC) supported the development of a Child Protection program in the AU Peace and Security Department (PSD) in 2013, to support the operational capacity of the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) Secretariat to develop a CAAC program.
In July 2021 the Africa Platform on Children Affected by Armed Conflicts was launched (AU & Save the Children, 5/07/2021). The end of this new entity is to serve as an informal, advisory and supportive network of AU Member States, UN agencies, international partners and civil society organizations, committed to preventing and protecting children from the impact of the scourge of war, armed conflicts and violent extremism.
Central African Republic and Uganda ratified most of the Conventions, Declarations, Covenants and Protocols, including Paris Principles. In Uganda the process of repatriation of former child soldiers is led by UNICEF in collaboration with the Ugandan government, the IOM, Save the Children and World Vision (OCHA, 27/08/2004,).
Beyond the Dilemma
In general, as Derluyn et al. (2015) highlighted, Children’s rights law, and other legal sub-disciplines, tend to focus on child soldiers as their primary concern, rather than on children affected by war in general. Most of the standard-setting and discussion has focused even more narrowly on the recruitment and participation of children in armed conflict, and on the age limit to be applied.
In her dissenting opinion, taking up in the expert witnesses’ testimony during the trial against Thomas Lubanga Dyilo, the Judge E. Odio Benito insisted on the fact that the crime of child recruitment causes effects on the victims and their families that are long-lasting, sometimes for a lifetime and often passing from one generation to another.
The post-traumatic stress disorder may affect victims for their entire lives, following their exposure to traumatic events (including having experienced or witnessed killing or mutilation, severe physical or sexual assault, sexual abuse and rape) whilst serving as child soldiers. […] rape happens to girl on a regular basis and they also suffer from forced marriage and other forms of sexual violence […] The sexual violence suffered […] impaired and most likely nullified, perhaps for the rest of their lives, the enjoyment of other human rights and fundamental freedoms of its victims (including inter alia, their right to education, their right to health, including sexual and reproductive health, and their right to a family life) (ICC, 10/07/2012, pp 41-52).
This harm to the victims and their families, make the crime of enlistment, conscription and use of children more serious and requires a higher sentence.
Approaches to children’s rights have always oscillated between protection (need of special protection and priority care) and autonomy (reference to children’s agency, resilience and coping mechanisms).
It is unclear to what extent the recognition of the child soldier’s autonomy would also imply by necessity their responsibility—including the criminal responsibility. Children may be seen as perpetrators of crimes when they have reached a certain age of criminal responsibility. What that minimum age of criminal responsibility (MACR) is, remains highly uncertain under international children’s rights law.
It is not only the law that is caught in the dilemma of whether to consider child soldiers victims or persecutors. The same problem is found in transitional justice and in psycho-social perspectives that aim the DD(R)R programs.
Both they consider children as victims, but this clashes with the fact that they find themselves trapped in the military logic (mechanism of ‘role-reversal’) and find it difficult to return to their communities after having killed or tortured their members, even though forced by the militia leaders. They are often discriminated against, stigmatized, even expelled by the original families and communities.
Another problem is that humanitarian and intervention agencies support former child soldiers with their resources in contexts where other children or persons are in need. These practices shape the public notion that former child soldiers are ‘rewarded’ for the atrocities committed, and moreover, that their civilian victims are not recognized nor ‘compensated’, enhancing sentiments of injustice.
Further the psychosocial intervention is focused on the healing of the former soldiers, and not in the reconciliation processes, which include the community and can be supported by traditional rituals.
Beyond this binary distinction, an interdisciplinary dialogue can help to move toward more effective approaches. Derluyn et al. highlighted four points that can open the perspectives:
- The children’s right to participation: rethink the accountability and responsibility of children and the reconciliation process that need to take place;
- Alternative ways of holding child soldiers accountable: the role of the Truth commissions on promoting some forms of non-judicial accountability; communities dialogues for reflection on the past and use of traditional conflict resolution practices; genuine juvenile justice approach for ordinary crimes;
- Connecting individual and social healing: rebuilding communities and societies with interventions connected to development and also national initiatives such as peace processes, amnesty acts and transitional justice processes;
- Participation of the former child soldiers in policy making and interventions.
Jiajie He et al. (2010) highlighted other weaknesses of the governance of the phenomenon of children soldiering: institutional fragmentation, the institutional dilemma whether to orient the governance on expertise or on complexity issues, the fund shortage.
Conclusions
Since the rising interest in the phenomenon of child soldiers, many legal and non-legal instruments have been conceived, under the recommendations and resolutions of the different entities of the UN. Given its complexity, this phenomenon intersects different areas of international law and requires coordination among the mechanisms set out in order to achieve the specific goals.
In CAR for this specific case they could appeal to several entities and they did: Government, HRD of MINUSCA, IOM, AU, UDPF and United States (within the Task Force that was countering the LRA), Invisible Children (also UNICEF and Save the Children were in Bangui, but they didn’t have contact with them).
A solution could have been found either by considering Samuel a victim and therefore resorting to the DD(R)R mechanisms, or by considering him a perpetrator and therefore resorting to the repatriation agreements provided in the mechanism countering the LRA.
What with evidence has prevented a solution at least human of the case, is the attitude of the Minister of Justice (who represents the Government in this matter). They did not show willingness to handle Samuel’s case humanely and they gave the impression of seeking revenge against an “enemy”.
Moreover they disregarded the accords made with the African Union. This institution, from their side, according to the testimony received, did not adequately engage in the case of Samuel.
The MINUSCA worked a lot in lobbying the national authorities, but its competence had to stop in front of the Central African sovereignty in its decisions. Which led to the question about the effectiveness of International Law and the need of a system of enforcement and accountability for the states that had ratified International Law and are part of International Operations and mechanism.
So, even if the UN is trying to make the humanitarian system working better, in general and in the case of the phenomenon we are focusing on, the primary responsibility lies with member States.
It is no coincidence that in her last report to the HRC (Forty-ninth session 28 February–1 April 2022), among the 10 Recommendations of the Special Representative of SG for CAAC, 7 of them are a direct call first and foremost upon the Member States.
List of References
AU & Save the Children, 5/07/2021, Africa Platform on Children Affected by Armed Conflicts, Launch Concept Paper, Save the Children, https://www.peaceau.org/uploads/concept-note-for-africa-platform-on-caac-launch.pdf
Derluyn, I., Vandenhole, W., Parmentier, S. et al. Victims and/or perpetrators? Towards an interdisciplinary dialogue on child soldiers. BMC Int Health Hum Rights 15, 28 (2015), https://bmcinthealthhumrights.biomedcentral.com/articles/10.1186/s12914-015-0068-5
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Invisible Children, website https://invisiblechildren.com/challenge
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Jiajie He & Tuo Zheng & Xiaojun Yang & Yuanyuan Lin & Jungang Xia, 2010. “UN Rescuing Child Soldiers Programme (UN-RCSP) Return the Childhood to Children,” Transition Studies Review, Springer; Central Eastern European University Network (CEEUN), vol. 17(2), pages 256-279, June, https://bd.booksc.eu/book/8186328/cbba03
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Author’s Short Bio
Elianna Baldi was born in Italy in 1977. After studying classical literature, she obtained a master’s degree in education from the University of Padua. she has been involved in Catholic-inspired youth groups and organizations in the areas of human rights and social justice. From 2007 to 2011 she worked in DRC, Eastern Province, in formal and non-formal education, with special focus on the rights of Pygmy indigenous peoples.
From 2012 to 2019 he works in CAR, in teacher training, at a local radio station, and in the field of peace education and human rights. From 2019 to 2021 she is pursuing a Bachelor’s degree in Peace Education, obtaining a bachelor’s degree with a thesis on Resilience from reflection on an experience with traumatized Central African children.
In 2022, he obtained a fellowship for a master’s degree in Religion, Culture and Peace Studies at UPEACE.
She is now doing her internship with Caritas Internationalis at HRC in Geneva.
